State Consumer Disputes Redressal Commission
Sri Pankaj Gupta vs Smt. Kakali Bera on 23 December, 2014
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/880/2013 (Arisen out of Order Dated 15/07/2013 in Case No. Complaint Case No. CC/185/2012 of District South 24 Parganas DF, Alipore) 1. Sri Pankaj Gupta Prop., M/s. M.P. Trading, 70/8, Raja S.C. Mullick Road, P.S. - Patuli, Kolkata - 700 047. ...........Appellant(s) Versus 1. Smt. Kakali Bera W/o Subrata Bera, Tikarampur, Byabasthar Hat, Nand Kumar, Purba Medinipur. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. Chandan Sah, Advocate For the Respondent: Mr. Anjan Kr. Dutta, Advocate ORDER 23.12.2014 MR. TARAPADA GANGOPADHYAY, HON'BLE MEMBER
This Appeal has been filed u/s 15 of the Consumer Protection Act, 1986 against the judgment and order dated 15.7.2013 passed by the Ld. District Consumer Disputes Redessal Forum, South 24 Parganas in C.C.Case No. 185 of 2012, directing the OP/Appellant to refund Rs. 1,95,000/- and also to pay to the Complainant/Respondent Rs. 10,000/- as cost and Rs. 1,00,000/- as compensation with interest @ 10% p.a. on the said amount in case of default. This apart, the OP had also been directed to pay penalty of Rs. 3,00,000/- for unfair trade practice, out of which Rs. 50,000/- to be paid to the Complainant/Respondent and the balance Rs. 2,50,000/- to be deposited with the 'Consumer Welfare Fund'.
Brief facts, as appearing from the materials on records, are that the Respondent/Complainant sometime in 2010 intended to purchase a truck from the Appellant/OP for a consideration of Rs. 7,00,000/-, out of which Rs. 1,00,000/- was to be paid by the Respondent/Complainant herself and the rest amount was to be paid by means of loan from a financier, Pankaj Gupta by name, and the said Truck was to be driven by the husband himself of the Respondent/Complainant to earn livelihood by means of 'self-employment' as averred in the Petition of Complaint (Running Page-17 of Memo of Appeal). With this intention in view the Respondent/Complainant had paid money, which aggregated at Rs. 1,95,000/- as claimed by the Respondent/Complainant, on several occasions on one account or the other, such as, Rs. 70,000/- on account of process loan, Rs. 19,500/- on account of EMI advance, Rs. 11,115/- on account of godown charges, Rs. 25,000/- on account of insurance, Rs. 13,500/- on account of T.O. etc. and in almost all such cases the Appellant/OP did not issue any receipt acknowledging the same as averred by the Respondent/Complainant. Despite compliance with all such advice from the Appellant/OP and payment of the aforesaid money and waiting for a long period of about two years when the Appellant/OP did not deliver the truck, the Respondent/Complainant demanded the refund of the said money paid, but to no avail. In this factual matrix the Ld. District Forum passed the impugned judgment and order in the manner aforesaid. Aggrieved by such order the OP/Appellant has preferred this Appeal.
Ld. Advocate for the Appellant/OP submits in the very beginning that the transaction in question was for commercial purpose and that not by way of 'self-employment' and hence, not falling within the definition of 'Consumer' as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. It is also submitted by the Ld. Advocate that the Respondent/Complainant in spite of receiving back Rs. 1,60,000/-, as per mutually settled agreement, as evident from the Money Receipts dated 3.7.12 and 10.7.12 (Running Page-23 of Memo of Appeal) bearing the signature of the Respondent/Complainant, the Respondent/Complainant filed the Complaint Case before the Ld. District Forum suppressing the material facts of mutual settlement and denying the receipt of the aforesaid refunded money of Rs. 1,60,000/-. It is further contended by the Ld. Advocate that the Ld. District Forum had committed 'gross misuse of power' by allowing compensation more than what was prayed for by the Complainant/Respondent. The Ld. Advocate finally concludes that in view of the above position of the case the impugned judgment and order should be set aside, it being improper and illegal.
On the contrary, the Ld. Advocate for the Respondent/Complainant assailing the said submission of the Ld. Advocate for the Appellant/OP submits that the truck was intended to be purchased and driven by the husband of the Respondent/Complainant for earning livelihood by means of 'self-employment' as averred in the Petition of Complaint. It is also submitted by the Ld. Advocate that the Respondent/Complainant paid Rs. 1,95,000/- on different counts on several occasions, but almost on all the occasions the Appellant/OP received the money without issuing any money receipt for the money received. It is further submitted by the Ld. Advocate that the signature of the Respondent/Complainant, as appearing on the Money Receipts of Rs. 1,60,000/- and also on the Declaration towards mutual settlement, as on records (Running Page-23 of Memo of Appeal) and produced by the Appellant/OP in course of hearing before the Ld. District Forum, are the counterfeit ones as reported, vide Report dated 5.3.2013, by the Hand-writing Expert of 'Questioned Documents Examination Bureau, CID, Government of West Bengal', Bhabani Bhawan, in their 'Questioned Document Case No. 78 of 2013', which was appointed by the Ld. District Forum as per petition of the Respondent/Complainant and that the Appellant/OP did not challenge the said report, implying thereby that the said report brought to light the fraudulent act on the part of the Appellant/OP. The Ld. Advocate finally submits that in view of such unfair trade practice and of the Appellant/OP having approached the District Forum with unclean hands the impugned judgment and order should be sustained, it being just and proper and acting as a deterrent to the unscrupulous litigant.
We have heard both the sides, considered their rival submissions and perused the materials on records including BNAs filed by both the sides.
The averment in the petition of complaint, as on records, shows that the truck, which was intended to be purchased, was to be driven by the husband himself of the Respondent/Complainant for earning livelihood by means of 'self-employment'. It is further revealed from the report dated 5.3.2013 of the Hand-writing Expert of 'Questioned Documents Examination Bureau, CID that the signatures of the Respondent/Complainant in the Money Receipts dated 3.7.2012 and 10.7.2012 and on the Declaration dated 3.7.2012, as produced by the Appellant/OP, were not the genuine signatures of the Respondent/Complainant.
It is well-settled that where a litigant approached a judicial forum with unclean hands and fraudulent evidence and thus tried to hoodwink the forum, then the petition of such litigant should be thrown out on the threshold itself. Further, if such litigant chose to advance his defence on the score of fraudulent documents, then the petition is liable to be dismissed with cost.
In view of the foregoing discussion and the above evidence on records we find force in the submission of the Ld. Advocate for the Respondent/Complainant and accordingly, we are of the opinion that the Ld. District Forum passed the impugned judgment and order upon correct appreciation of the facts and evidence on records and hence, the impugned judgment and order warrants no interference by this Commission.
Consequently, the Appeal is dismissed with cost of Rs. 5,000/-to be paid by the Appellant to the Respondent/Complainant. The impugned judgment and order stands affirmed. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER