State Consumer Disputes Redressal Commission
Md. Tayyab Ali Son Of Jafer Ali Age 21 ... vs 1. Sofia Fathima D.O. Mohd Jahanger, ... on 15 February, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. A/511/2014 (Arisen out of Order Dated 24/07/2014 in Case No. CC/179/2012 of District Mahbubnagar) 1. Md. Tayyab Ali Son of Jafer Ali AGe 21 Years, Occ Private Employee, R.o. H.No.1.9.119 by 1, New Gunj Near Narasimhaswamy Temple, Mahabubnagar 509 001 ...........Appellant(s) Versus 1. 1. Sofia Fathima D.o. Mohd Jahanger, minor Under Guardianship of her natural father Mohd. Jahangir Son of Zainlabuddin, aged 37 Years, Occ Contract Employee in District Forum Mahabubnagar, R.o. H.No.1.9.81, New Gunj, Mahabubnagar 2. 2. Mandakari Rajesh Son of not know, Partner of Perfect Enterprises, Reliable Auto Finance and Consultants Waqf Complex, R.o. H.No.2.4.42, Ramaiah Bowli, Mahabubnagar 3. 3. Syed Imran Son of Not known Partner of Perfect Enterprises, Reliable Auto Finance and Consultants Waqf Complex, R.o. H.No.3.12.66, Veerannapet, Mahabubnagar ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 15 Feb 2018 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA : At HYDERABAD FA 511 OF 2014 AGAINST CC No. 179 OF 2012, DISTRICT FORUM, MAHABUBNAGAR Between : Md. Tayyab Ali, S/o Jafer, Ali, age 21 yrs, Occ : Private Employee, R/o H.No.1-9-119/1, New Gunj, Near Narasimhaswamy Temple Mahabubnagar - 509 001. ... Appellant/1st opposite party And Sofia Fathima, D/o Mohd. Jahanger, Minor under guardianship of her natural father, Mohd. Jahangir, S/o Zainlabuddin, age 37 years Occ : Contract Employee in District Forum, Mahabubnagar R/o H.No. 109-81, New Gunj, Mahabubnagar .. Respondent/complainant Mandakari Rajesh, S/o not known Partner of Perfect Enterprises, Reliable Auto Finance & Consultants, Waqf complex, R/o H.No.2-4-42, Ramaiah Bowli, Mahabubnagar. Syed Imran, S/o not known Partner of Perfect Enterprises, Reliable Auto Finance & Consultants, Waqf complex, R/o H.No.3-12-66, Veerannapet, Mahabubnagar ... Respondents/Opp. parties 2 and 3 Counsel for the Appellant : M/s. M. Rama Krishna for Appellant Counsel for the Respondents : Md. Tayyab Ali, Party-in-person for R-1 R2 and R3 served. Coram : Honble Sri Justice B. N. Rao Nalla ... President And Sri Patil Vithal Rao ... Member
Thursday, the Fifteenth Day of February Two Thousand Eighteen Oral order : ( per Hon' ble Sri Justice B.N.Rao Nalla, Hon'ble President ) ***
1) This is an appeal filed under Section 15 of the Consumer Protection Act by the 1st opposite party praying this Commission to set aside the impugned order dated 24.07.2014 made in CC 179 of 2012 on the file of the DISTRICT FORUM, Mahabubnagar.
2) For the sake of convenience, the parties are described as arrayed in the complaint before the District Forum.
3). The case of the complainant, in brief, is that the first opposite party floated 'Passion Pro' two-wheeler scheme under the name and style "Perfect Enterprises Reliable Auto Finance & Consultants" at Waqf Complex in Mahabubnagar for the scheme period of 37 months and every member has to pay Rs.1,000/- per month. After joining the scheme the members shall pay the down payment of Rs.30,000/- and the first opposite party will arrange the 'Passion Pro two-wheeler vehicle' within 40 days after receipt of said down payment. The complainant being minor under the guardianship of her father has joined the scheme on 5-11-2011 as a member and she was allotted lucky No.264 on down payment of Rs.27,236/-. Thereafter her father has paid 7 monthly installments regularly at Rs.1,000/- each, but the 1st opposite party passed receipts only for down payment and one month installment. Her father requested the 1st opposite party on many a time for releasing the vehicle and issuance of balance receipts, but the 1st opposite party postponed the matter. Her father has paid regular installments and also given a hand loan of Rs.10,000/- to 1st opposite party to adjust the hand loan amount for future installments of the scheme but postponing the release of vehicle on some pretext or the other. Her father got issued a legal notice on 17-10-2012 to 1st opposite party for which he gave evasive reply. Hence this compliant to direct the opposite parties to release the vehicle Passion Pro two wheeler or return of the amount of Rs.44,000/- along with interest, to pay compensation of Rs.20,000/- towards mental agony and deficiency of service, and Rs.10,000/- towards costs of the complaint.
4). The first opposite party opposed the above complaint by way of written version, contending that the complainant along with her father together approached one Mandakari Rajesh who along with Syed Imran used to run the firm namely 'Perfect Enterprises' for employment. The 1st opposite party was selected by said Rajesh as Manager of the shop and he worked as collection boy from August, 2011 to November, 2011 and thereafter the firm was closed. The said fact is also known to the father of the complainant. As the father of the complainant's father died in his childhood, he developed in the house of OP-1's father and his brothers as he being a son's son of paternal aunt of OP-1. The father of complainant has paid Rs.27,336/- plus Rs.1,000/- on 5-11-2011 and later what he paid not known to OP-1 as the firm is closed. The allegation that the father of the complainant paid Rs.10,000/- to OP-1 as hand loan is totally false. It is true that the Lawyer's notice dated 17-10-2012 is received and replied to it stating that the OP-1 not related to the firm and nothing liable to pay to the father of complainant. The present complaint was filed without showing original partners of the firm. The 1st opposite party collected the amounts only as an employee in the firm. There is no deficiency in service on his part and hence prayed to dismiss the complaint.
5). The OPs.2 and 3 are called absent throughout the proceedings
6) During the course of enquiry before the District Forum, in order to prove her case, the complainant's father filed his evidence affidavit and got marked Ex.A1 to A-7 and 1st opposite party filed his evidence affidavit and got marked Ex.B1. Heard both sides.
7) The District Forum, after considering the material available on record, directed the opposite parties 1 to 3 to refund an amount of Rs.28,236/- under Exs.A-1 and A-2 with 9% interest p.a. under the scheme from the date on 5-11-2011 till realization and also to pay to pay Rs.2,000/- towards costs of the complaint to the complainant
8) Aggrieved by the said order, the 1st opposite party preferred this appeal before this Commission.
9). Heard on behalf of the appellant. 1st respondent/complainant filed written arguments.
10) The points that arise for consideration are, (i) Whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? (ii) To what relief ? 11). Point No.1 :
There is no dispute that the 1st respondent/complainant being minor, under the guardianship of her father, has joined the scheme for two-wheeler vehicle and paid an amount of Rs.28,236/- on 5-11-2011 towards down payment and 1st installment under the scheme vide Exs.A-1 and A-2.
12. The contention of the 1st respondent/complainant is that her father paid down payment of Rs.27,236/- on 5-11-2011 and 7 monthly installments @ Rs.1,000/- and also hand loan of Rs.10,000/- to OP-1, who is a partner of the firm, and in turn the OP-1 has promised that the said hand loan amount would be adjusted for future monthly installments of the scheme and in her support she relied on Exs.A-1 to A-7. On the other hand, OP-1 contended that he is an employee of 'Perfect Enterprises' but not partner and he worked as collection boy for four months from August, 2011 to November, 2011 and during the said period he received cash amounting to Rs.28,236/- on 5-11-2011 from the father of complainant and argued that as an employee he cannot be fastened with any liability except the owner/partner.
13. The learned counsel for the 1st respondent/complainant vehemently argued that the appellant/OP-1 did not speak anything about his employment with the firm when he replied in Ex.A-5 to the legal notice in Ex.A-4 and the employment plea taken by OP-1 only in his counter but it has no supporting evidence
14). The District Forum observed that as per Ex. B-1 document registered partnership firm under the name and style of M/s Perfect Enterprises formed only by OPs.2 and 3 as its partners and Ex.A1 and A2 receipts were issued by the appellant/1st opposite party in the capacity of Manager and hence the argument of the appellant/1st opposite party that he worked as collection boy for the firm for four months from August, 2011 to November, 2011 and further in reply notice under Ex.A-5, the appellant/OP-1 has pleaded that he has no way concerned with the firm of Ops and hence his pleadings are self contradictory with each other and in those circumstances, the District Forum came to the conclusion that appellant/1st opposite party is also liable along with the respondents 2 and 3/opposite parties 2 and 3 to refund the said amount of Rs.28,236/- under Exs.A-1 and A-2 with interest @ 9% p.a. from 5-11-2011 till realization to the complainant under the scheme along with costs of Rs.2,000/- and the District Forum did not award the amount with regard to 7 monthly installments @ Rs.1000/- per month and hand loan amount of Rs.10,000/- as there was no evidence.
15). Counsel for the appellant/1st opposite party argued that the District Forum failed to appreciate that he received the amount on behalf of the firm as an employee and that there is no relationship between him and the firm and that as per Ex. B1, the respondents/Ops 2 and 3 are the proper and necessary parties to refund the amount. On the other hand, the first respondent/complainant argued that the appellant is also liable to pay the amount.
16) We have also perused the documents. Ex.A1 and A2 receipts show that the appellant received the amounts in the capacity of Manager. Further, the appellant/first opposite party did not file his appointment order to prove that he is an employee and except that he had no relationship with the said firm. In the absence of the appointment order and in view of the contradictory versions by the appellant/1st opposite party as discussed above, we do not find any irregularity in the impugned order passed by the District Forum in fastening the liability on the appellant/1st opposite party along with the respondents 2 and 3/opposite parties 2 and 3.
17). Point No. 2 :
In the result, the appeal is dismissed confirming the impugned order dated 24.07.2014 in CC 179 of 2012 passed by the District Forum, Mahabubnagar. There shall be no order as to costs. Time for compliance four weeks.
PRESIDENT MEMBER Dated : 15.02.2018.. [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER