Diptiben Kotai vs Jayantilal Sankalchand Patel

THE present revision petition has been filed against the judgment and order dated 15.11.2011 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad ( ''the State Commission '') in Appeal no. 56 of 2011.

RESPONDENT / complainant in his complaint stated that for ensuring the bright future of his son desired to send him abroad and entrusted the work to the petitioner/ respondent who was in the business of sending abroad those persons who desired to go out of the country. The petitioner had also published advertisement in the newspapers. On seeing the advertisement of the petitioner, the respondent desired to send his son - Rohit Patel - Welder, to United States of America (USA). He along with his son contacted the petitioner at Hotel Pride, C G Road, Ahmedabad on 05.07.2007 with all the necessary documentation and the same was given at her residence at Bopal on 05.08.2007. On 15.09.2007, the petitioner had informed the respondent that he had to pay sum of Rs.1,38,000/-. The respondent paid Rs.1,38,000/- by way of cheque no. 0871306 dated 17.09.2007 drawn on Bank of Baroda, Dahegam Branch in favour of the petitioner, which was handed over at the petitioner ''s residence at Bopal. A receipt was prepared on the Xerox copy of the cheque by the petitioner putting her signature on it. Thus the petitioner accepted the cheque and prepared the receipt. The respondent thereafter followed up with the petitioner regarding the time frame by which his son would be able to go to USA. The petitioner kept on assuring the respondent that "your name will come in turn and you will be informed in writing ". Thereafter on 05.06.2009 the petitioner informed the respondent that as per the contract with the USA agent for sending the people to USA had been terminated and therefore his son could not be sent to USA. The respondent asked for the refund of the money, but no response was received. The respondent hence prayed for refund of Rs.1,38,000/- with interest @ 18% per annum upto 17.09.2009 amounting to Rs.53,830/- totalling to Rs.1,91,830/-. He further asked for an amount of Rs.25,000/- as compensation and Rs.1500/- towards the cost. The petitioner while admitting in the written statement that she had taken the cheque of Rs.1,38,000/- along with the papers on 17.09.2007 and stated that she had been working on behalf of Devendrasinh Chauhan who is the Director of the Company P & R Business Solution Limited. She further stated that per the instructions of Mr Chauhan, the amount of Rs.1,25,000/- was paid in cash to him and the balance of Rs.13,000/- was credited against the expenses like office rent and cost of advertisement etc. Therefore, the petitioner had received the cheque of the respondent after affixing the signature on the receipt. The petitioner stated that she was working as a representative employee in the Company and hence was not liable to make any refund. The amount of Rs.1,38,000/- which was accepted by the petitioner were withdrawn by the Director of the said Company, Mr Chauhan and his father-in-law and brother-in-law from the Company and wherein any responsibility for making the payment or giving refund does not arise on her part. All this responsibility is that of the P & R Company and its Directors. The respondent filed a consumer complaint no. 103 of 2009 before the District Consumer Disputes Redressal Forum, Ahmedabad (Rural) ( ''the District Forum '').

THE District Forum were of the opinion that undisputedly, the facts are that the amount of Rs.1,38,000/- was paid by the respondent to the petitioner for sending his son to USA and that the petitioner had averred to send his son to USA and as per the say of the respondent no action was taken for sending the son of the respondent to USA. It is also clear that the petitioner did not return the amount of Rs.1,38,000/- paid by the respondent. Therefore, the petitioner has shown deficiency in service and also shown negligence. The defence raised by the petitioner cannot be accepted in any manner. "Therefore, the respondent/ complainant has totally succeeded in proving the complaint against the petitioner ". the respondent should pay to the respondent/complainant an amount of Rs.1,38,000/- along with running interest @ 9% per annum from the date of filing of the complaint till its realisation. The petitioner was also directed to pay an amount of Rs.5,000/- to the respondent alleging harassment and suffering and towards the cost of the suit.

AGGRIEVED by the decision of the District Forum, the petitioner filed an appeal no. 56 of 2011 before the State Commission. The State Commission also came to the conclusion that the cheque of Rs.1,38,000/- has been drawn in the name of the petitioner - Diptiben Kotai. The receipt for accepting the cheque has also been given by the petitioner by signing in the Xerox copy of the cheque. As per the letter produced vide page 17 of the compilation of the Bank of Baroda, the said amount has been deposited in the Bank account of the petitioner with ICICI Bank. Except the oral word, regarding the fact that the amount of Rs.1,25,000/- was to paid in cash to Mr Chauhan and Rs.13,000/- were to be kept towards office expenses there is no reliable evidence for the same. Therefore, when she has received the above amount and despite this action for sending the son of the respondent was not done, the liability for refunding the said amount is on the part of the petitioner only. Further the State Commission also came to the conclusion that since the complainant has given the cheque from his Bank Account, and only correspondence had taken place between the son of the complainant and Devendrasin. Therefore, it cannot be said that the complaint should have been filed by Rohit. " The appeal was dismissed, but order of District Forum was modified to the extent that the petitioner would pay to the respondent an amount of Rs.1,38,000/- with 9% simple interest from the date of filing the complaint. Hence, this present revision petition.

THE grounds for the revision petition are as follows: Petitioner submits that the State Commission has failed to appreciate the fact that the petitioner has a very limited role in the transaction between respondent and Mr Devendrasinh Chauhan. The State Commission has failed to appreciate the documentary evidence which suggest that the advertisement was published by Mr D Chauhan. The State Commission has also failed to appreciate the fact that Mr D Chauhan has issued the receipt to respondent. The State Commission has failed to appreciate the fact that pursuant to the request of respondent, petitioner has accepted amount of Rs.1,38,000/- in her name out of which Rs.1,25,000/- was given to Mr Chauhan. Petitioner herein has kept only Rs.13,000/- from the said amount as maintenance for the office etc. Petitioner has produced the relevant portion of passbook which suggest that the petitioner has withdrawn substantial amount to make the payment to Mr D Chauhan. The State Commission has not appreciated the above aspect of the matter, hence the judgment and order passed by the State Commission as well as Forum is required to be quashed and set aside. The State Commission has failed to appreciate the fact that petitioner has also paid the amount to Mr D Chauhan to get the work permit for her own brother. As Mr Chauhan has not fulfilled the promise petitioner has filed complaint with Ellisbridge Police Station under section 406, 420 of IPC against the D Chauhan. The State Commission has not appreciated the above aspect of the matter hence, the judgment and order passed by the State Commission as well as District Forum is required to be quashed and set aside.

THE petitioner further submits that the State Commission as well as Forum has not appreciated the documentary evidence produced before the Forum which clearly suggest that respondent has directly in connection with Mr Chauhan. It is clearly established that Mr Chauhan has assured the respondent about the refund of the amount. The above fact clearly established that petitioner is not legally liable to refund any amount to the respondent. However, the State Commission as well as District Forum has under the wrong presumption of fact and held the petitioner liable to refund the amount. The State Commission has not appreciated the above aspect of the matter hence, the judgment and order passed by the State Commission as well the District Forum is required to be quashed and set aside. The State Commission as well as District Forum has failed to appreciate the legal aspect of the matter that the complaint was not filed by Mr Rohit Patel for whom the work permit for the US is required to be obtained even though Mr Rohit Patel is major. The present respondent has no locus standi to file the complaint before the forum. The State Commission has not appreciated the above aspect of the matter hence, the judgment and order passed by the State Commission as well as District Forum is required to be quashed and set aside. We have heard the learned counsel for the parties and have also carefully gone through the documents brought on record. Counsel for the petitioner has drawn our attention to the receipt on record purportedly of Mr Chauhan. We have seen the receipt dated 10.12.2007 on the letter head of P & R Recruitment Services Ltd., wherein the address has mentioned as "494 Kenton Road, Harrow Middlesex, HA3 9DL, U K ", C/o Dipti Kotai which states that "received from Mr Rohit Patel, 41 Mangal Murti Tenaments, Kathwada Road, Naroda, Ahmedabad - 382330 (Gujarat) for Great Britain Pound (GBP) 1650. This receipt bears no signature and cannot be taken as an evidence that the said money (Rs.1,38,000/-) was paid and received by Mr Chauhan . Undisputedly, the respondent and his son had been meeting the petitioner and the petitioner had received the cheque no. 0871306 for Rs.1,38,000/- which was credited to her account. No evidence has been produced to support that after encashing the cheque of Rs.1,25,000/- the said amount was paid in cash to the Mr Chauhan. Having accepted the cheque she was liable to give the required service which she failed to do so. Hence, the liability for refund is that of the petitioner alone. Learned counsel for the petitioner has cited the case of ''Mahipal Singh vs UNBVNL " which was decided by this Commission on 17.11.2011. The cited case is not applicable to the case on hand.

IN view of the foregoing reasons we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is dismissed both on the count of limitation as well as on merit with cost of Rs.5,000/- (Rupees five thousand only). Petitioner is directed to deposit the cost by way of demand draft in the name of ''Consumer Welfare Fund '' as per Rule 10 A of Consumer Protection Rules, 1987, within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation. List on 3rd May 2013 for compliance.