D.O.F:09/02/2015
D.O.O:20/08/2022
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION KASARAGOD
CC.No.32/2015
Dated this, the 20th day of August 2022
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Prajeesh.P.V, K
S/o Mohanan, aged 24 years,
Puthiya veetil, Pariyaram, P.O C. Poyil,
Taliparamba Taluk,
Kannur Taluk – 670502 : Complainant
(Adv: P.Padmanabhan)
And
1. Managing Director,
M/s Zain Bajaj,
Cheruvathur, P.O, Cheruvathur
Kasaragod District
(Adv: Ashalatha.M)
2. Branch Manager, : Opposite Parties
Indus Ind Bank Ltd,
Cheruvathur, Kasaragod District
(Adv: Sreejith.K)
ORDER
SRI.RADHAKRISHNAN NAIR.M : MEMBER
The facts of the case in this case in brief is that the complainant booked two motor bikes with Opposite party No 1 , by paying Rs.13,518/- towards initial payment and process fee. The price of one motorbike was fixed to be Rs. 69,198/- and the balance consideration was to be arranged by the Opposite party No.1 from Opposite party No. 2 and Muthoot Vehicle Finance Co. Ltd. The complainant handed over the necessary application to Opposite party No.1. The Opposite party No .1 agreed to give the delivery of the vehicle within 3 months. Thereafter the Opposite party No.1 gave delivery of one Motor bike bearing No. KL59 H6044 ,for which the Muthoot Finance Co. Ltd paid the balance amount to Opposite party No. 1. The Opposite party No.1 did not give the delivery of the 2nd Motor bike in spite of repeated requests. Thereafter on 16.01.2015, the complainant received a copy of claim petition filed by the Opposite party No .2 before the Arbitrator, praying for an award directing the complainant to pay the loan amount with interest and other charges to Opposite party No. 2. The Opposite party No.1 received Rs.57,000/- from the Opposite party No. 2, falsely representing that they have given delivery of 2nd Motorbike booked by the complainant. The act of the Opposite party No..1 is service deficiency and unfair trade practice ,which caused mental agony and hardships. The Opposite party No.1 is liable to give delivery of the Motor bike to the complainant and interest and other charges on the loan amount to the Opposite party No. 2. Hence this complaint for a direction to the Opposite party No 1 to pay interest and other charges on the loan amount to the Opposite party No. 2. and to pay Rs.1,00,000/- and costs to the complainant .
The opposite parties entered in appearance through their respective counsels , who filed separate written versions .
As per the version of the Opposite party No.1, the complaint is false and frivolous. The Opposite party No.1 denied all the contentions in the complaint and submitted that one Smt. Geetha, who was managing the service center of Opposite party No.1, was doing the business independently, without the knowledge and consent of the Opposite party No.1. Smt. Geetha sold motorbikes and auto rickshaws without crediting the amount in the account of Opposite party No.1, by fabricating false and fake invoices and other records. Smt. Geetha sold two- wheelers and three - wheelers in fake addresses and thereby misappropriated huge amounts obtained from customers. Therefore Opposite party No.1 initiated criminal action against Smt. Geetha , as Cr. No.315/2014 under 468,471,406 and 420 IPC, which is charge Sheeted and pending before JFCM Hosdurg. There is no connection with the complainant and Opposite party No.1 with regard to the alleged transaction.
There is no service deficiency on the part of the Opposite party No.1 and the complaint is Iiable to be dismissed.
As per the version of the Opposite party No. 2 , the complaint is false , frivolous, vexatious and not maintainable in law. The Opposite party No. 2 denied allegations in the complaint , except that are admitted. It is submitted that as per the application of the complainant, the Opposite party No. 2 granted Ioan and transferred the amount of Rs 57,000/- to Opposite party No.1 through RTGS as per the prior agreement.
. Against the loan agreement, the cheque of the complainant was returned due to insufficiency of funds. For recovering the outstanding loan amount with interest Opposite party No. 2 initiated arbitration proceedings and award was passed against the complainant. It is the legal responsibility of the complainant to pay the loan as per the terms and condition of the agreement.
There is no service deficiency on the part of the Opposite party No. 2 and therefore the complaint is Iiable to be dismissed.
The Complainant filed proof affidavit in lieu of chief examination and documents Ext. A 1 and Ext. A 2 marked . The Ext - A1 is the true copy of the loan application submitted to Opposite party No. 2, Ext - A 2 is the copy of Ioan agreement dated 31.7.2013. He was cross examined as Pw- 1
From the side of the Opposite parties, the proprietor of Opposite party No.1 filed proof affidavit in Iieu of chief examination and documents Ext. B1 to Ext. B5 are marked. He was cross examined as DW - 1. The Ext. B 1 is the CC of the Fl R in Cr 315/2014, Ext. B2 is the Memo of evidence in CC No.3460/2014 on the file of JFCM, Hosdurg, Ext.B 3 is the copy of 161 statements , Ext. B 4 is the copy of agreement entered in between Smt.Geetha and Customers.Ext. B5 and B6 are the Decree and Judgment in OS No.353/2015 on the file of Munsiff court Hosdurg.
Based on the pleadings and evidence of the rival parties in this case the following issues are framed for consideration.
1. Whether there is any service deficiency or unfair trade practice on the part of all or any of the opposite parties ?
2. If so, what is the relief ?
For convenience, both these issues are considered together.
Here the specific case of the complainant is that he booked two motor bikes with Opposite party No 1 , by paying Rs.13,518/- towards initial payment and process fee. The price of one motorbike was fixed to be Rs. 69,198/- and the balance consideration was to be arranged by the Opposite party No.1 from Opposite party No. 2 and Muthoot Vehicle Finance Co. Ltd. The complainant handed over the necessary application to Opposite party No.1 . The Opposite party No .1 agreed to give the delivery of the vehicle within 3 months. Thereafter the Opposite party No.1 gave delivery of one Motor bike bearing No. KL59 H6044 , for which the Muthoot Finance Co. Ltd paid the balance amount to Opposite party No. 1. The op No.1 did not give the delivery of the 2nd Motor bike, in spite of repeated requests. Thereafter on 16.01.2015, the complainant received a copy of claim petition filed by the Opposite party No. 2 before the Arbitrator, praying for an award directing the complainant to pay the loan amount with interest and other charges to Opposite party No. 2. The Opposite party No. 1 received Rs.57,000/- from the Opposite party No. 2, falsely representing that they have given delivery of 2nd Motorbike booked by the complainant. The act of the Opposite party No.1 is service deficiency and unfair trade practice, which caused mental agony and hardships. The Opposite party No.1 is liable to give delivery of the Motor bike to the complainant and interest and other charges on the loan amount to the Opposite party No. 2.
The Opposite party No.1 denied all the contentions in the complaint and submitted that one Smt. Geetha, who was managing the service center of Opposite party No.1, was doing the business independently, without the knowledge and consent of the Opposite party No.1. Smt. Geetha sold motorbikes and auto rickshaws without crediting the amount in the account of Opposite party No.1 , by fabricating false and fake invoices and other records. Smt. Geetha sold two- wheelers and three - wheelers in fake addresses and thereby misappropriated huge amounts obtained from customers. Therefore Opposite party No.1 initiated criminal action against Smt. Geetha , as Cr. No.315/2014 under 468,471,406 and 420 IPC, which is charge Sheeted and pending before JFCM Hosdurg. There is no connection with the complainant and opposite party No.1 with regard to the alleged transaction.
The opposite party No. 2 submitted that as per the application of the complainant, the Opposite party No. 2 granted Ioan and transferred the amount of Rs 57,000/- to Opposite party No.1 through RTGS as per the prior agreement. Against the Iaon agreement, the cheque of the complainant was returned due to insufficiency of funds. For recovering the outstanding loan amount with interest Opposite party No. 2 initiated arbitration proceedings and award was passed against the complainant. It is the legal responsibility of the complainant to pay the loan as per the terms and condition of the agreement.
Here the issue is mainly regarding the non delivery of the 2nd motor bike by the Opposite Party No.1 to the complainant. It is come in evidence that an amount of Rs. 57,000/- had been paid by the Opposite Party No.2 to Opposite party No.1, through RTGS, towards the price of the motor bike, for and on behalf of the complainant as per the loan agreement.
The case of the Opposite party No.1 is that they have no connection with the complainant but one Smt. Geetha, their staff was dealing with the transaction, without their knowledge and consent. It is also submitted that the amount was misappropriated by the above said Smt. Geetha and for that criminal prosecution is initiated against her and therefore they are not at all liable for any loss or damages caused to the complainant in this regard.
Another contention raised by the Opposite Party No.1 during evidence is that the complainant and Smt. Geetha settled the matter themselves which was denied by the complainant. , The Opposite Party No.1 produced a document Ext. B 4 a photostat copy of agreement entered in between Smt. Geetha and Customers to prove that aspect , but it is clear that the complainant has not signed in that agreement and it cannot be concluded that the complainant and Smt. Geetha settled the matter themselves .
It is a settled rule that an employer, though guilty of no fault himself, is liable for the damage done by the fault or negligence of his servant acting in the course of his employment. In some cases, it can be found that an employee was doing an authorized act in an unauthorised but not a prohibited way. The employer shall be liable for such an act, because such employee was acting within the scope of his employment and in so acting he did something negligent or wrongful. A master is liable even for acts which he has not authorized provided they are so connected with acts which he has been so authorised.
In our opinion, the view taken by the Hon'ble Supreme Court in several cases where the complainants suffer on account of negligence or service deficiency of the employee would equally apply in a case where he suffers on account of the misconduct such as theft or misappropriation. Therefore, the Opposite Party No.1 in our view, would be liable to compensate for the loss suffered by the complainant, on account of the wrong committed by their employee.
Taking a contrary view, will result in a situation where a consumer is left to identify the employee irresponsible for the loss sustained by him and then locate and sue him for compensating him for the loss sustained by him. It may not always be possible to identify the employee or locate him even if it is established that the loss to the consumer took place on account of the misconduct of the employee of the service provider and even if such an employee is identified and located, it may not be possible for the consumer to recover adequate compensation form him. The consumer Protection Act, being a Social Welfare Legislation, the complainant in our view, cannot be placed in such a difficult position. But here in this case, the opposite party No.1 identified the employee and took legal action against her.
In our view, in this case, it will be for opposite party No.1 to compensate the consumer and then seek to recover the amount which it pays to him, from the employee, due to whose misconduct the consumer has suffered a loss.
Considering the facts and circumstances of this case this commission is of the view that there is service deficiency on the part of the staff and the Opposite party No.1 is vicariously liable to compensate.
The case is filed when the complainant received a copy of claim petition filed by the Opposite party No. 2, before the Arbitrator, praying for an award directing the complainant to pay the loan amount with interest and other charges to Opposite party No. 2. But the complainant did not produce any receipt for the payment made by him in this account. He did not produce any receipt for remittance of any advance amount also .Therefore this commission is not inclined to allow any compensation to the complainant from the Opposite party No.1, by way of reimbursement. But the complainant is definitely entitled for compensation on account of mental agony and hardships that he suffered. This commission holds that an amount of Rs.5,000/- would be a reasonable amount of compensation.
In the result the complaint is allowed and the Opposite Party No.1 is directed to pay Rs. 5,000/- (Rupees Five thousand only)towards compensation and Rs. 5,000/-(Rupees Five thousand only) as costs to the complainant.
The time for compliance is 30 days from receipt of the copy of this judgment .
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1- Copy of the loan application.
A2- Loan agreement
B1- CC of the FIR in Cr 315/2014
B2- Memo of evidence in cc No. 3460/2014
B3- Copy of 161 statements
B4- Copy of agreement
B5 & B6 – Decree and judgment in OS No. 353/2015
Witness Examined
Pw1- Prajeesh.P.V
Dw1- Abdul Basheer
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
