Gagan Singh vs Rasilu Ram

THIS revision petition has been filed under Section 21 (b) of the Consumer Protection Act 1986, by Shri Gagan Singh Petitioner in this case, against the orders passed by both the District Forum and the State Commission.

BRIEF facts of the case according to the Petitioner are as follows: Petitioner purchased a vehicle Mahindra Commander bearing Registration No. HP 02-8408 from one Kishori Lal, (Respondent No. 2) vide Agreement dated 13.08.1999. Thereafter, he became the owner of the vehicle and was therefore, fully authorized to sell it which he did to Respondent No. 1 (Shri Rasilu Ram) by entering into an Agreement with him dated 04.04.2001. According to this Agreement, the Respondent paid him Rs.75,000/- and also agreed to take over the liability of loan of Rs.1,43,131/- to be paid to Punjab National Bank in equal installments of Rs.3000/- per month. On 27.05.2001 the said vehicle was purportedly given by the Respondent No. 1 to Kishori Lal (Respondent No. 2) who did not return it to him, for which the Petitioner cannot be held responsible in any way. Respondent No.1 confirmed the facts regarding purchase of the vehicle and the Agreement between him and the Petitioner on 04.04.2001 as well as the fact that the vehicle alongwith the Driver was taken away from his possession by Kishori Lal, Respondent No. 2 on the plea of hiring it as a Taxi. However, instead of returning the vehicle, Respondent No. 2 sent a message to Respondent No. 1 that he is still the owner of the vehicle since the Petitioner had not paid him for it and he would therefore not return the vehicle to Respondent No. 1. Respondent No.1 reported this matter to the Petitioner to seek his help in getting back the vehicle. The Petitioner however, showed his inability to get the vehicle returned and also refused to return the amount of Rs.76,000/- which the Respondent had paid to him for the purchase of the vehicle plus Rs.3000/- being one monthly installment deposited in the Bank as per the Agreement. As per the records on file, the Respondent No.1 filed a Civil Suit in the Court of Sub-Judge 1st Class, Palampur, Himachal Pradesh on 7th August 2001, seeking recovery of Rs.78,000/- and damages from both the Petitioner and the Respondent No. 2. However, on 31.12.2003 on the date of hearing neither Petitioner nor his Counsel put in appearance and the suit was dismissed in default.

Respondent No. 1 moved the District Forum on 28.08.2003 on the grounds of deficiency in service on the part of the Petitioner. Eventually, due to non-appearance of the Petitioner, the District Forum passed an ex-parte order in favour of Respondent No.1. The operative portion of this order is as follows: It also stands established that one Kishori Lal forcibly took the said vehicle from the possession of the complainant and when the complainant requested Kishori Lal to hand over the vehicle to him, then Kishori Lal disclosed that OP had purchased the vehicle from him and failed to make the payment as per agreement. The OP neither got the possession of the vehicle delivered to the complainant nor returned the said amount of money received by him from the complainant. In view of the said facts, the OP misrepresented the complainant and default on his part in restoring the possession of the vehicle to the complainant or returning the amount received by him from the complainant, definitely amounts to deficiency in service. In result, the complaint is allowed. The OP Gagan Singh is directed to make payment of Rs.78,000/- to the complainant (Rs.75,000/- paid to the OP on the date of agreement + Rs.3000/- paid to the Bank) or deposit the same in this Forum within 30 days from the receipt of the copy of this order, failing which the said amount shall interest @ 12% per annum from today itself, till the said amount is paid to the complainant or deposited in this Forum.

AGGRIEVED by the order of the District Forum, the Petitioner filed an appeal under Section 12 of the CP Act before the State Commission, on the following grounds: (i) District Forum wrongly passed an ex-parte order against him without following the principles of natural justice and thus condemned him without hearing his version. (ii) Petitioner had purchased the vehicle from Respondent No. 2 Kishori Lal vide an agreement dated 4th April 2001 and he therefore was fully authorized to sell the vehicle to any one and he could not be held responsible, for any subsequent action on the part of Respondent No. 2, after the vehicle was sold by him to Respondent No.1 on the basis of a mutually agreed written agreement. (iii) The case does not come within the purview of the C P Act since this is not a consumer dispute. This was also the findings of the District Forum, Dharamshala, which the petitioner had approached on 28.08.2003. (iv) The principles of resjudicata would apply since Respondent No.1 had also filed a case on the same issue before a Civil Court. The State Commission however, upheld the order of the District Forum and also inter-alia held that the principles of resjudicata would not apply in this case, because the suit filed before Sub-Judge Class I was for recovery whereas the present case has been filed alleging deficiency in service (emphasis added) as provided under the Consumer Protection Act. Aggrieved by this order, the petitioner has preferred the present Revision Petition.

WE have heard the learned Counsel for the parties and have also gone through the relevant papers and documents on record. The District Forum and the State Commission had both given a finding in favour of the Respondent No.1 on the grounds of there being deficiency in service on the part of the Petitioner. Therefore, the basic issue for decision before us is whether there was in fact any such deficiency on the part of the Petitioner in terms of the provisions of the C P Act. In this connection, signing of the Agreement dated 04.04.2001 between the Petitioner and the Respondent No. 1 is relevant because, it was only after the acceptance of the terms and conditions by Respondent No.2 that the sale of the vehicle to Respondent No. 1 was satisfactorily concluded. The fact that the possession of the vehicle was handed over by the Petitioner to Respondent No. 1 is adequate testimony that there was no deficiency on the part of the petitioner in concluding the entire transaction to the satisfaction of Respondent No. 1. Respondent No. 1 has himself admitted that after the vehicle came into his possession he voluntarily gave it to Respondent No. 2 for use as a Taxi. If thereafter Respondent No. 2 refused to return the vehicle to him, Petitioner cannot be held responsible for this mishappening. It is clearly a dispute between Respondent Nos. 1 and 2, and prima-facie appears to be a matter for civil adjudication. In view of the above facts, we conclude that there was no deficiency in service for which the Petitioner can be held responsible. We accordingly, allow the Revision Petition and set aside the order of the State Commission and District Forum. The statutory amount of Rs.25,000/- which had been deposited by the Petitioner with the State Commission be refunded to him. Ordered accordingly.