MALWA AUTOMOBILES PVT LTD vs RAM MEHAR SINGH KUNDU

-THIS appeal is directed against the order dated 27. 8. 2004 passed by the District Consumer Disputes Redressal Forum, Karnal whereby while accepting the complaint of the respondent No. 1-complainant, direction has been given to the appellant-opposite party No. 2 as well as respondent No. 2-opposite party No. 1 to refund the booking amount of Rs. 1,30,000 to the complainant along with interest at the rate of 10% p. a. from the date of legal notice being 10. 3. 2003 till payment. In addition Rs. 5,000 has been awarded as compensation on account of mental agony and harassment caused to him.

THE facts stated in the complaint briefly stated are that the complainant had deposited Rs. 1,30,000 on 27. 2. 2003 against receipt No. 8603 towards the booking amount for the purchase of TATA-Indigo (L. S.) with the opposite party No. 2 being the dealer of opposite party No. 1. Thereafter, the complainant purchased cover note No. 470930, Book No. 40/2005/021 -13838 dated 27. 2. 2003 from the National Insurance Company, Karnal by paying premium of Rs. 16,080. According to the complainant he had lost the envelope contained both the receipts as well as Cover Note. The complainant informed the opposite parties for the loss of receipts and cover note and further met personally the opposite party No. 3 in this regard. Thereafter, registered letter dated 19. 3. 2003 was written by the complainant to the opposite party No. 2 in order to apprise the opposite party No. 2 about the loss of the booking receipts and cover note. Subsequently, when the complainant contacted the opposite party No. 2 to deliver the car, he was told that the car would be delivered to him on payment of the higher price as the price had not been reduced by the Company. Thereafter, the complainant asked the opposite party No. 2 to refund the booking amount deposited by the complainant with the opposite party No. 2 but no action was taken in this regard. Thereafter, a legal notice dated 10. 4. 2003 was issued to the opposite party No. 2. In reply the opposite party No. 2 informed the complainant that at his instance booking amount had been transferred in the name of Smt. Gayatri Devi wife of Rajinder Kumar, resident of Ladwa. Terming the above stated stand of the opposite parties as patently false and concocted, he filed the present complaint seeking direction against the opposite parties to refund the booking amount of Rs. 1,30,000 and to pay interest @ 18% per annum till the date of payment. In addition, Rs. 2,00,000 was claimed as compensation on account of deficiency in service. The complaint was contested by the opposite parties. In the joint written statement filed they raised preliminary objection with regard to the locus standi; not maintainability of the complaint in the present form; the complaint being not a consumer; want of cause of action and want of jurisdiction of the District Forum to try the complaint. On merit it was stated that after the booking of the car was made by the complainant on deposit of Rs. 1,30,000 to the opposite party No. 2 dealer of the opposite party No. 1, the complainant had approached the ICICI Bank for financing the balance amount and as loan which could not mature for that reason, on the request of the complainant booking was transferred in the name of Gayatri Devi. They denied having received any intimation from the complainant regarding loss of booking receipts and cover note, as alleged in the complaint. It was further stated that the deposited amount was thereafter paid to Gayatri Devi through account payee cheque on 20. 3. 2003 after deducting the commission charges. It was further stated that complainant had lodged a false report against the opposite party No. 2 and police after investigation had found no substance in the allegations made against the opposite party No. 3. Accordingly, it was prayed that the complaint merited dismissal. On the basis of the above pleadings of the parties and evidence adduced on record the District Forum found no substance in the stand of the opposite parties and while accepting the complaint issued the directions in its order dated 27. 8. 2004 noticed above. Hence, the present appeal at the instance of the appellant-opposite party No. 2. Learned Counsel representing the appellant-opposite party No. 2 as well as the respondent-complainant in person have been heart at length.

The order of the District Forum dated 27. 8. 2004 has been assailed by the learned Counsel representing the appellant on four counts. Firstly, that the complainant had not impleaded Gayatri Devi as a party to the complaint despite specific allegations. Even in the complaint it is alleged that the opposite parties, in league with Gayatri Devi, had misappropriated amount from the complainant and the complaint deserves to be dismissed on this ground. Secondly, that the complainant raised disputed question of fact and law relating to the fraud committed by the opposite parties and had transferred the booking amount in the name of Gayatri Devi and the same could not bave been agitated in exercise of the summary jurisdiction of the District Forum as the complainant as remedy to invoke the jurisdiction of the Civil Court. In respect of the stand taken reliance was placed on case Satish Mehra v. Canara Bank, 1996 (2) Con. LT 252 (NC); Parveen Gupta v. General Manager, Telecom Deptt. and Ors. , III (2003) CPJ 577=2004 (1) CPC 78. Thirdly, that the District Forum had ignored the evidence produced on record which clearly established that the booking amount was transferred in the name of Gayatri Devi at the behest of the complainant and no evidence has been led from the side of the complainant to establish that the opposite parties had committed any breach of the terms and conditions of the agreement. Lastly, that the District Forum had totally ignored the allegations made in the FIR No. 233 dated 17. 6. 2003 under Sections 406, 420, 467, 468, 471, 504 and 506, IPC Police Station, Model Town, Panipat, which was found to be false and for that reason cancellation report was sent by the Police to Ilaqa Magistrate on 6. 9. 2003 which amply established that the complainant was in the habit of making false accusation against the opposite parties for oblique motives and considerations and the complainant had put up a false version of getting the vehicle insured without the vehicle being delivered to him. The submissions made have been countered by the respondent No. 1-complainant in person who has justified the order of the District Forum for the reasons stated therein. In addition it was also submitted by him that merely because a report was lodged with the Police, that would not oust the jurisdiction of the District Forum to try the complaint. Reliance was placed by him in case of Lalmuni Devi v. State of Bihar and Ors. , I (2001) SLT 26=i (2001) CCR 9 (SC)=2001 (3) RCR (Cr.) 228 (SC ). Dealing with the submissions made, as submission Nos. 1, 2 and 4 are interconnected with each other, they are taken together. In this case the undisputed facts are that the complainant had deposited Rs. 1,30,000 on 27. 2. 2003 with the opposite party No. 2 as booking amount for the purchase of TATA Indigo (LS) car. Thereafter, in para No. 2 of the written statement filed by the opposite parties it has been averred that after the booking, the complainant could not arrange for the finance and for that reason the booking was made in the name of Gayatri Devi at the request of the person who had done the booking of the car in the name of Ram Mehar Singh Kundu. According to the complainant this transfer of the booking had been made by the opposite party No. 1 in connivance with Gayatri Devi and merely because it has been alleged from the side of the complainant that there is a fraud committed by the opposite parties in this regard with the complainant, that per se would not oust the jurisdiction of the District Forum to decide the complaint. The Hon''ble Supreme Court in case CCI Chambers Co-op. Hsg. Society Ltd. v. Development Credit Bank Ltd. , III (2003) CPJ 9 (SC)=v (2003) SLT 185=2004 (1) CPC 1 (SC) has held that the decisive test is not the complicated nature of the questions of fact and law arising for decision. The anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary inquiry i. e. , by doing away with the need of a detailed and complicated method of recording evidence. It was further observed that the Fora under the Act at every level are, headed by experienced persons. Keeping in view the principle laid down in the above mentioned case and nature of the controversy and evidence led on record it has to be held that the dispute raised could be decided in summary jurisdiction of the District Forum. Therefore, simply because the complainant had lodged the complaint with the police and the police had sent the cancellation report also does not come in the way of the District Forum to decide the complaint because the conclusion drawn by the police and the basis of investigation carried out cannot be taken into account while deciding the dispute raised on the basis of evidence led by the parties in the complaint filed.

EVEN otherwise presence of Gayatri Devi is not needed to decide the dispute raised because as far as the complainant is concerned, he has not sought any relief against her and in view of the averments made in the complaint presence of Gayatri Devi is not at all essential to decide the controversy raised in the complaint. Therefore, the submissions made from the side of the appellant in the face of record are without any foundation and are accordingly rejected. The core of the controversy is that whether the opposite parties had any authority to transfer the booking amount in the name of Gayatri Devi. It is the definite case of the complainant that he had informed the opposite party No. 2 not to transfer the booking amount in the name of anybody. In support of the stand taken legal notice Ex. C-4 dated 10. 4. 2003 issued to the opposite party No. 2 has also been placed on record. The justification given by the opposite parties is that they had transferred the booking amount in the name of Gayatri Devi on the request of the person who had booked the car. Surprisingly enough, the letter on the basis of which it had acted had not been authored by the complainant as no signature of the complainant on this letter has been proved on record. The complainant in his affidavit has categorically stated that he had also informed the opposite parties about the loss of the receipts of the deposited amount to the opposite parties. The opposite parties had not obtained any consent in writing of the complainant for transferring the booking amount in the name of Gayatri Devi and thereafter releasing the amount to her by way of bank draft. The contents of the letter Ex. O3 clearly reveal that it caontains the request of the author to transfer the amount by way of bank draft in the name of Gayatri Devi. The reason for recourse adopted is that author of the letter is not in a position to purchase the car. That being so, in the normal course he will request the opposite party No. 2 to refund the amount to him and not to Gayatri Devi. Under the circumstances of the case the only conclusion that can be drawn is that the opposite parties had acted unauthorisedly in transferring the booking amount in the name of Gayatri Devi. During the course of arguments it was pointedly asked from the learned Counsel representing the appellant-opposite party No. 2 as to whether at the time of transferring of the booking amount in the name of Gayatri Devi, any intimation was also given to the opposite party No. 1 to which it was stated that there was no requirement to do so. This stand of the appellant as such cannot be accepted because after the booking amount is received, the opposite party No. 2 was duty bound to intimate to the opposite party No. 1 as well because the supply of the booked car was to be made by the opposite party No. 1. Thus, the opposite parties have failed to establish by leading any acceptable evidence on record that it has transferred the amount in the name of Gayatri Devi under the authority of the complainant. That being so deficiency of service on their part is substantiated on record. Therefore, the District Forum was fully justified in accepting the complaint and issuing the directions in its order dated 27. 8. 2004 noticed above.

FOR the aforesaid reasons there is no merit in the appeal and the same is consequently dismissed. Appeal dismissed.