State Consumer Disputes Redressal Commission
Neelam Rani vs M/S P.K.Motors Private Limited on 20 September, 2012
First appeal no. 86 of 2008 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 86 of 2008
Date of institution : 04.02.2008
Date of Decision : 20.09.2012
Neelam Rani Wife of Sh. Pawan Kumar son of Dev Raj Verma,
Resident of Near PWD Rest House, Budhlada, District Mansa
through her General Power of Attorney Shri Gagan Deep son of Sh.
Dev Raj.
....Appellant/complainant
Versus
M/s P.K.Motors Private Limited, Head Office SCO No. 132, Chotti
Baradari, Patiala through its Director/partner.
...Respondent/OP
First Appeal against the order
dated 12.11.2007 of the District
Consumer Disputes Redressal
Forum, Patiala.
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member.
Sardar Jasbir Singh Gill, Member.
Present:-
For the appellant : Sh. Akshay Jain, Advocate
For respondent : None
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER:
This is complainant's appeal under section 15 of the Consumer Protection Act (hereinafter referred to as the Act) against the order dated 12.11.2007 passed by the Learned District Consumer Disputes Redressal Forum, Patiala (hereinafter referred to as the District Forum) vide which the complaint was dismissed. First appeal no. 86 of 2008 2
2. The present complaint was filed by Neelam Rani through her special attorney Gagan Deep S/o Devraj alleging that she has nobody to appear before the learned District Forum being a lady and has therefore, executed a power of attorney in favour of Gagan Deep. It was alleged that she was in need of a vehicle for her domestic purpose and approached the OP/respondent who told the price of Bolero Jeep in Cherry colour Rs.4,90,000/-. She deposited advance amount of Rs.2,00,000/- through a draft dated 15.04.2006 which was encashed by the OP. The contention of the complainant further is that the OP/respondent has neither delivered the vehicle nor refunded the amount. She therefore, prayed for recovery of Rs.2,00,000/- paid to them through draft and Rs.2,00,000/- as compensation for unnecessary harassment and Rs.50,000/- for mental tension and torture.
3. The contention of the OP/respondent is that she is not a consumer and there is no privity of contract between them. It was denied if she paid any such amount of Rs.2,00,000/- through a draft. Their contention is that her husband Pawan Kumar had purchased a vehicle from them for Rs.4,60,000/-, he paid Rs.16939/- vide a cheque for insurance policy, he thereafter, paid Rs.15,000/- in cash and the remaining amount was to be paid after obtaining a loan from the Finance company. However, the Finance company did not sanction the loan, Pawan kumar therefore, paid Rs.30,000/- on 04.03.2006 and Rs.25,000/- on 10.03.2006. On 17.04.2006 he handed over two drafts each for a sum of First appeal no. 86 of 2008 3 Rs.2,00,000/- and paid Rs.5,000/- in cash. The remaining amount of Rs.1,939/- was also paid on that date making it a total of Rs.4,76,939/-. It was contended by the OP that the draft of Rs.2,00,000/- was paid by her husband Pawan Kumar to clear the out standing amount and was not paid by her for booking a new Bolero Jeep. It was alleged that Bolero Jeep in Cherry colour is not being manufactured by Mahindra & Mahindra Company. He received a notice to which a reply was sent on 26.10.2006. The complainant however, has not mentioned anything about the purchase of Bolero Jeep by her husband i.e. Pawan Kumar and the amount paid by him. It was denied if she ever booked any such Jeep or paid an advance through cheque. It is alleged that, that is why neither she herself is willing to appear as a witness or to file the complaint nor the power of attorney was given by her to her husband Pawan Kumar, in order to avoid cross-examination during evidence. The complaint was said to be malafide.
4. An opportunity was granted to both the parties to lead evidence in support of their contentions.
5. Nobody however, appeared for the OP/respondent on 15.10.2007 and the OP/respondent was therefore proceeded against ex-parte.
6. After hearing argument of the learned counsel for the complainant and perusing the record, the complaint was dismissed vide impugned order dated 12.11.2007. The complainant has challenged the same through this appeal.
First appeal no. 86 of 2008 4
7. Initially Sh. Suresh Gulati, Advocate appeared for respondent and thereafter, on 14th of August, 2012, Sh. Rajender Kumar, Advocate filed a memo of appearance, but nobody come present on 10.09.2012 to address the arguments. Therefore, we have heard the arguments of the learned counsel for the appellant and have perused the record.
8. The contention of the learned counsel for the appellant is that the complainant has sufficiently proved that a draft for Rs.2,00,000/- was given to the OP which fact has been admitted by the OP/respondent. It is argued that the contention of the OP/respondent that it was part payment of the sale price of a Bolero Jeep purchased by the husband of the complainant was wrong as no evidence was led by the OP to prove the same and therefore, the said plea should not have been accepted by the learned District Forum. It is also argued that even without any evidence led by the OP the complaint has been dismissed and the said order therefore should not sustain and is liable to be set-aside. We do not find any merit in this contention.
9. There is no denying the fact that in order to succeed, the complainant was required to adduce evidence in support of her contention. However, in the present case there is no evidence to prove the allegations made in the complaint. The contention of the complainant is that she wanted to purchase the Bolero Jeep for her domestic purpose and for that purpose she had deposited the amount of Rs.2,00,000/- with the OP/respondent through a draft First appeal no. 86 of 2008 5 dated 15.04.2006. The complainant did not file her affidavit nor appeared as a witness to prove this contention. There is no allegation nor any proof if Gagan Deep, who has filed his affidavit Ex. C-1 accompanied the complainant at that time and saw the complainant giving the draft for booking the jeep. It may be mentioned that it is only Gagan Deep who has filed his affidavit but the evidence adduced by him being hear say cannot be considered to prove this averment. No reason has been given as to why the complainant should not have filed her affidavit if the contents of the complaint were correct.
10. The complainant has given the reason in para no.2 of the complaint that she being a lady is unable to appear before the learned District Forum and has therefore, executed special power of attorney in favour of Gagan Deep, Annexure C-2 is the power of attorney executed by her which is attested by a Notary. When she appeared before the Notary Public to execute power of attorney, there is no reason why an affidavit in support of the complaint was not sworn by her. When she came to execute the power of attorney, the said affidavit could also have been executed at that very time. However, it shows that the complainant intentionally avoided to become a witness in this case, that is why, she avoided filing an affidavit so that she was not called for cross-examination. An adverse inference requires to be drawn against her for not filing the affidavit.
First appeal no. 86 of 2008 6
11. In case "Farmers Poultry Breeding Farm Vs. Punjab State Power Corpn. Ltd." II (2011) CPJ 202, the Hon'ble National Commission held that if power of attorney holder has rendered some acts in pursuance of power of attorney, he can depose on behalf of principal in respect of such acts, but he cannot depose for acts done by principle and not by him. In another case "Krupa Nidhi College of Pharmacy and another Vs. Niloofar Shokraiah Zanjani" (II) 2009 CPJ 207, Hon'ble National Commission held that power of attorney holder could not depose about material facts within exclusive knowledge of complainant. It was held that evidence in affidavit being pure hear say evidence, cannot be relied upon and the lower fora erred in allowing the complaint relying upon evidence of power of attorney holder. The order passed by the lower fora was set-aside. In case "Delhi Development Authority Vs. Mangeram" (I)2009 CPJ 302 also the National Commission held that the affidavit/evidence of power of attorney is merely hear say evidence. In view of these facts the affidavit Ex.C- 1 of Gagan Deep cannot be taken into consideration to hold that the complainant had booked any jeep or paid the amount through draft for its booking.
12. It was also argued by the learned counsel for the complainant/appellant that the husband of the complainant had earlier purchased a Bolero Jeep and the invoice Ex. C-4 shows that the payment was made in cash. It is contended that after the payment against the Bolero Jeep was made in cash by her First appeal no. 86 of 2008 7 husband, nothing remained due from him. It is also argued that when the OP/respondent has received Rs.2,00,000/- vide demand draft Ex.C-3 which was given by the complainant, therefore the complaint should have been allowed. We do not find any merit in this contention also. Before filing the present complaint the complainant has served a notice to the OP/respondent and the OP/respondent has given a reply to this effect that it was not the booking amount towards the jeep but was payment of the amount due from Pawan Kumar. Even in spite of that no effort was made by the complainant to prove as to how the amount of Rs.4,60,000/- was paid by Pawan Kumar to the OP against the purchase of the said Jeep. Pawan Kumar could be produced as a witness to prove that he had already made the payment or to deny that the draft in question was not towards part sale price of the Jeep. The complainant however, avoided from the witness box not only herself but her husband also for which an adverse inference has to be drawn that they avoided becoming a witness due to the only reason that they had no explanation regarding the contention raised by the OP/respondent. Had they appeared for the witness box they would have supported the objections raised by the OP, that is why instead of the complainant Gagan Deep chose to peruse the same. It appears that is why the complainant concealed the fact from the complaint if her husband had earlier purchased any jeep from the OP.
First appeal no. 86 of 2008 8
13. Needless to mention that it is for the complainant to lead reliable and sufficient evidence to succeed in her own case. The fact that the OP has not led any evidence is immaterial because the story put forward by the complainant herself is not believable nor has the same been proved by satisfactorily evidence. We have therefore, no hesitation in holding that the complainant had not booked any such Jeep with the OP nor the demand draft for Rs.2,00,000/- was given for the said purpose. She has not produced any such documents/receipts to prove that she had handed over the draft or had ever booked the Bolero Jeep. The payment made to the OP therefore, cannot be said to be towards the booking of the Jeep by her. It can also to be the part payment of the sale price of the Bolero Jeep purchased by her husband who had not been able to obtain any loan for the said purchase.
14. In view of the above discussion we are of the opinion that the Learned District Forum has rightly dismissed the complaint vide impugned order dated 12.11.2007 which is perfectly legal and valid and does not call for any interference. There is no merit in this appeal and the same is accordingly dismissed with cost. Litigation costs is assessed at Rs.10,000/-.
(Jagroop Singh Mahal) Presiding Judicial Member (Jasbir Singh Gill) Member 20th September, 2012 Rashmi First appeal no. 86 of 2008 9