State Consumer Disputes Redressal Commission
Mr. Koushik Changder & Another vs The Chairman, Ghatal People'S ... on 22 October, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/09/147 DATE OF FILING : 17.04.2009 DATE OF FINAL ORDER: 22.10.2009 APPELLANTS 1. Mr. Koushik Changder 2. Mr. Manas Changder Both are sons of Sri Dulal Changder Vill. & P.O. Banka, P.S. Chandrakona Dist. Paschim Medinipur. RESPONDENTS 1. The Chairman Ghatal Peoples Co-operative Bank Ltd. P.O. & P.S. Ghatal Dist. Paschim Medinipur. 2. The Secretary Ghatal Peoples Co-operative Bank Ltd. P.O. & P.S. Ghatal Dist. Paschim Medinipur BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY MEMBER : MR. S.COARI FOR THE PETITIONER / APPELLANT : Mr. R.K.Chaumal, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. P.C.Bhattacharjee, Ld. Advocate : O R D E R :
MR.
P.K.CHATTOPADHYAY, LD. MEMBER This Appeal arose out of judgement and order dt.
16.3.09 in DCDRF, Paschim Medinipur Case No. 116/2008 where the complainants namely (1) Sri Koushik Changder and (2) Sri Manas Changders complaint related to negligence of service on part of the Ops namely (1) The Chairman, Ghatal Peoples Co-operative Bank Ltd. and (2) The Secretary, Ghatal Peoples Co-operative Bank Ltd.
The complainants primary allegation levelled against the Ops related to maintenance charges on custody of a bus sold through auction where issues like payment of consideration towards custody of the bus and payment of arrear tax for the bus amounting to Rs. 36,850/- were also factors. The complainants also dealt with the contention of the OP/Bank that the bus in dispute sold by the Bank could not be transferred due to institution of a litigation by the previous owner of the bus and thus they had to sustain considerable loss out of compulsion of the situation.
The Ops namely (1) The Chairman, Ghatal Peoples Co-operative Bank Ltd. and (2) The Secretary, Ghatal Peoples Co-operative Bank Ltd. questioned the maintainability of the complaint and stated that firstly the complainants were not consumers per se and also pointed out that the complainants having volunteered to take Jimma of the bus as it was lying under open sky and the Bank merely having agreed to such request there could not be any question of any maintenance charges being payable to the complainant.
The Ld. Forum below after hearing the mater passed its judgement and order as under :-
Hence, ordered that the complaint be dismissed on contest with costs.
Being aggrieved and dissatisfied with the impugned judgement and order of the Ld. Forum below the complainants in the Forum namely (1) Sri Koushik Changder and (2) Sri Manas Changder filed this Appeal stating inter alia that it is an admitted fact that the complainants/Appellants participated in the auction for sale of the bus No. WB-29/5506 arranged by the Ops and their bid of Rs.
9,50,000/- was the highest and after being judged the highest bidder the custody and/or Jimma of the said bus was given to them for safe-keep and maintenance. It was also a fact that according to the terms of the said auction sale the complainants deposited 5% of bid amount, i.e. Rs. 44,500/-, on 22.6.05 in favour of the Bank, duly accepted, following which the custody of the bus for safe-keep and maintenance of the same was given to them. It was also not disputed that after giving the possession of the bus the Blue Book seized from the erstwhile owner was handed over to the Appellants/Complainants and as per Banks direction and requirement to effect clear title and ownership of the said bus, arrear tax of Rs. 36,850/- was deposited and insurance premium was also paid towards transfer of the said bus in their names.
However, the Ld. Forum below erred in appreciating the foregoing position and wrongly presumed that the father of the Appellants/Complainants, Sri Dulal Changder, participated in the auction sale ignoring the terms of the said auction sale and thus erroneously assumed that they had not applied for loan of Rs. 10.00 lakhs and they were not consumers of the Bank, which position is patently wrong. Referring to the Appellants/Complainants not being consumers as supposedly they were engaged in transport business the Appellants contended that no cogent document was placed in evidence in support of such stand and further pointed out to the Ops alleged auction inspite of there being number of litigations when they lacked clear title of the said bus. Stating that the Ld. Forum below failed to weigh the documents submitted by the Appellants/Complainants in true perspective and thus arrived at a wrong decision in dismissing the complainants case on the ground that the complainants were not consumers and had no cause of action against the Ops the Appellants prayed for setting aside of the impugned judgement and order and prayed for suitable remedy. The complainants relied upon the following citations in such regard.
1. 2006(2) CPR 132 (NC) Nagar Palika Mandal Rajasmand, Rajasthan Vs. Kishan Lal wherein it was held that Respondents deprived of the use of auction money deposit without being giving possession due to litigation pending on it Consumer Fora directed refund with interest whether there is any error in said direction?
(No) Revision dismissed.
2. 1 (2007) CPJ 192 (NC) R.Jagan (DR.) Vs. Motor Vehicle Maintenance Department & others wherein it was held that Motor Vehicle Car purchased in auction sale held by Motor Vehicle Maintenance Department & others Full payment received R.C. Book and T.O. Form not delivered to complainant said necessary documents not handed over despite repeated letters and visit to Ops Deficiency of service proved Forum directed to OP to pay Rs. 50,000/- as damages, which State Commission reduce to Rs. 20,000/- - Hence Revision Petition Fit case for at least paying compensation of more than Rs. 50,000/- - No justified reason for State Commission to interfere with discretionary order passed by the Forum.
The Respondents namely (1) The Chairman, Ghatal Peoples Co-operative Bank Ltd. and (2) The Secretary, Ghatal Peoples Co-operative Bank Ltd. in their argument firstly questioned the maintainability of the complaint and argued that the Appellants/Complainants not having impleaded the Bank, a body corporate entity having perpetual succession and seal with right to sue and to be sued, the complaint itself was not maintainable, where the Chairman and Secretary respectively were made parties and where any order or judgement is only and strictly enforceable against the Bank only. Questioning the Appellants/Complainants as to their being consumers or otherwise the Respondents stated that the Appellants were not consumers for purposes of Consumer Protection Act, 1986, as amended, as they never took part in the auction sale so revealed on the evidence thereof. Stating further that the father of the Appellants namely Sri Dulal Changder, was the participant in the auction, who was the successful bidder and had deposited 5% of the bid money though the said money was deposited by the Appellants only on behalf of their father, it was contended that this did not necessarily follow that either they were the beneficiaries or that they were the lawful owners of the said auctioned bus, when the entire consideration money was not paid in full. Coming over to the aspect of supposed loan being proposed to be paid to the Appellants it was contended that the Appellants have failed to adduce any scrap of paper to show that the said loan of Rs. 10.00 lakhs was either allowed or assured. Referring to the Appellants running a transport business and having obtained a vehicle under number LP 1109/36 on 31.3.05 from Bhandari Automobiles, Kharagpur, by taking loan from the bank, it was contended that the Appellants were established operators in transport business as was evident from the foregoing and the Appellants stand that the bid supposedly made by them in the present case was only for their livelihood and sustenance was not duly established through evidence. It was also argued that even assuming for the purpose of argument that the Appellants participated in the auction, they still could not be held as consumers because the Appellants have no scrap of paper to establish that they satisfied the Respondents about the condition of the bus, its documents and previous owner before bidding as per conditions published by the Bank through paper advertisement and when the Bank was not a service provider as was determined in the case reported in (2009) 4 SCC 660 Union Territory Chandigarh Administration & others Vs. Amarjeet Singh & others, and also when the Appellants could not show that they were asked by the Bank to deposit the arrear tax. Referring to the custody of the vehicle it was argued that the agreement executed by Kousik Changder and not the other Appellant, showed that the Appellant No. 1 volunteered to take Jimma of the bus as it was lying under open sky and the Bank only agreed to his request, which in a way did not confer any obligation on the Bank as to bearing any cost of maintenance or conferring any right or title to the Appellant No. 1 for such transient custody. Finally pointing out that not having paid the entire consideration money the Appellants could not have instituted a complaint case, more so when there was no transfer of title as to its ownership or when there was no explicit condition for bearing cost of maintenance by the Respondents and thus, it was submitted that the impugned judgement and order of the Ld. Forum below was perfectly in order and the Appeal should be dismissed.
DISCUSSION A. The Ld. Forum below essentially dealt with two aspects of the complaint case namely (1) whether the complainants were consumers within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, as amended and (2) whether the Ops were deficient in service within the meaning of Section 2(1)(g) read with 2(1)(o) of the Consumer Protection Act and determined after a threadbare discussion that the complainants were not consumers for purposes of this complaint case and also that there was no deficiency in service on part of OPs. After a careful consideration of the Appeal and after examination of evidence as adduced and upon hearing of respective arguments of both sides we find no fault in the said finding of the Ld. Forum below on both aspects. We agree with the finding of the Ld. Forum below that the Appellants/Complainants cannot be held to be consumers within the meaning of Section 2(1)(d)(ii) of Consumer Protection Act within the bundle of facts and on the evidence placed before us, the details of which have been discussed in the judgement and order of the Ld. Forum below.
B. We further find that there is no evidence whatsoever to show that the Op/Bank was deficient in service in regard to the allegations made out in the complaint so far the same is related within the meaning of Section 2(1)(g) read with Section 2(1)(o) of Consumer Protection Act, 1986.
As a matter of fact, the entire complaint as instituted before the Forum is deemed to be an exercise to take possession of a property under somebody elses ownership under the grab of an innocent Jimmanama with wrongful claims of maintenance charges, where there is not a word as to its usage, payment of tax or operative use. In such view, we find the complaint to be mischievous and without any reasonable and lawful basis and thus instituted to harass and coerce a public institution for narrow and selfish effort for gain.
C. In the light of foregoing discussion we are inclined to hold that the Appeal is liable to be dismissed on payment of exemplary cost of Rs. 10,000/- to be paid by the Appellants to the Respondents.
O R D E R The Appeal stands dismissed on contest with exemplary cost of Rs. 10,000/- (Rupees ten thousand only) to be paid by the Appellants to the Respondents within 30(thirty) days from the date of communication of this judgement, failing which the decretal amount shall accrue 9% (nine per cent) interest for the period of default. The impugned judgement is affirmed.
MEMBER MEMBER