DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SUBARNAPUR
C.D.Case No. 14 of 2008
1. Sarat Chandra Mohanty, S/o. Late Narayan Mohanty, aged about 60 years,
2. Bhagirathi Mohanty, S/o. Sarat Chandra Mohanty,, aged about 26 years,
Both by Occupation – Cultivation, R/o. village Mursundhi, P.O. Mursundhi, P.S. Birmaharajpur, District – Subarnapur
………… Complainant
Vrs.
The Branch Manager, State Bank of India, Mursundhi Branch, At/P.O. Mursundhi, P.S. Birmaharajpur, District – Subarnapur
………… Opp. Party
Advocate for the Complainant …………. Sri O.P.Pradhan
Advocate for the Opp. Parties …………. Sri B.C. Panda
Present
1. Sri S.C.Nayak, President
2. Smt. N.Parwin, Lady Member
3. Sri A. Mishra, Male Member
Date of Judgement Dt.26.11.2009
J U D G E M E N T
By Sri S.C.Nayak, P.
The complainants both father and son have filed this complaint against the B.M., S.B.I., Mrusundhi Branch alleging deficiency of service on his part. The grouse of the complainants are common. Their case is that the complainant No.1 availed crop loan of Rs.44,000/- and complainant No.2 availed crop loan of Rs.40,000/- for Rabi crop for the year 2006-07. Being instructed by the O.P. they deposited Rs.2,000/- each towards premium of crop insurance. There was Rabi crop failure for the year 2006-07 for which the complainants suffered loss of about Rs.15,000/-. On 27.1.2008 the complainants requested the O.P. to take step for immediate disbursement of insurance amount to them but the O.P. told them that no insurance was made in respect of their crop.
On these allegations the complainants have claimed that the O.P. be directed to pay compensation of Rs.30,000/- to the complainant towards crop insurance, Rs.5,000/- towards mental agony and hardship. They have also claimed cost of litigation.
-: 2 :-
The O.P. has filed written version. According to him he has never asked the complainants to deposit Rs.2000/- each towards premium at any point of time. According to him each of the complainants have repaid Rs.2,000/- on 14.11.2006 for their loan account which is reflected in the statement of account of the complainants. According to him as there is no deposit of premium by the complainants no declaration of crop failure by the insurance company, question of negligence by the O.P. does not arise. It is alleged by him that as no process fee is paid by the complainants they are not consumers U/s.2(d) of the C.P.Act.
We have heard the complainants in person, the O.P. represented through his lawyer. From the pleadings of the parties the following points require consideration.
1. Are the complainants consumer ?
2. Have they paid Rs.2,000/- each towards insurance premium or it was paid towards repayment of loan ?
3. Was there Rabi crop failure for the year 2006-07 ?
4. To what relief the complainants are entitled ?
It is true that no process fee for documentation for availing loan has been paid by the complainants. But the complainant pay interest for the loan incurred and the Bank is not doing any benevolent work in disbursing loan to them. So the submission of the learned counsel for the O.P. has got no force and it does not hold water. The complainants are consumers within the meaning of C.P.Act.
Now the second point is taken up for consideration. We have perused the document filed by the complainant. In response to the loan application dt.30.10.2006 of the complainants, the O.P. has send letters to the complainants indicating there in the terms and conditions of the agricultural finance. The Xerox copy of the said letter is on the record. In clause (g) of the said letter there is provision for repayment which is reproduced below : (g) – Repayment – The loan is to be repaid in 45 days after harvest in clause (h) of the said letter there is provision for insurance. The Xerox copy of the application form for agricultural credit is also there on record. In this document in the page which has been marked as “ FOR OFFICE USE ” there is a heading Observations of apprising officer. In this heading there are 10 questions and the answer to this question
-: 3 :-
are given in the right hand side by giving tick mark on Y/N which stands for Yes or No. For our purpose question No.10 is relevant and the said question is reproduced below :- Whether crops are covered under crop insurance scheme ? The answer to the question is given in right hand side giving tick mark in the letter “ Y ” meaning thereby yes. In this document there is a page with a heading (Annexure A) In this page due date of repayment of this crop loan has been shown as April – May 2007. This document has been signed by the applicant as well as appraising officer. From this documents we ascertain that there was provision for crop insurance on the loan sanctioned to the complainants and the loan was sanctioned upto April / May 2007. We have gone through the Xerox copy of the pass books. From these documents it is ascertained that both the complainants have avail loan in two phases one on 30.10.2006 and another on 2.11.2006 and just after 12 days of receiving the loan in second phase they have deposited Rs.2,000/- each on 14.11.2006. So when the loan was sanctioned upto the month of April – May 2007 there was no need for them to repay Rs.2,000/- just after 12 days of receiving the loan amount. Under these facts and circumstances we are inclined to believe that both the complainants being instructed by the O.Ps.to deposit Rs.2,000/- each towards insurance premium have deposit the same as there was provision for the same in the loan sanctioned. For the sake of argument even if it is assumed that the deposits were made for repayment of loan and not towards insurance premium, then also the O.P. was duty bound to deduct the insurance premium from the loan amount sanctioned to the complainants and to credit the same to the account of the insurance company as there was provision for crop insurance in the loan sanctioned. For the reasons stated above we are of the considered opinion that there has been deficiency of service on the part of the O.P.
Now the 3rd point is taken up for consideration. We have asked the complainant to produce evidence regarding Rabi crop failure for the year 2006-07. The documents filed by the complainant go to show Kharif crop failure for the year 2006-07 and from this we cannot come to the conclusion that there was also failure of the Rabi crop. In absence of cogent evidence we are unable to hold that there was failure of Rabi crop in the village during the year 2006-07.
Now the next point that remains for consideration is to what relief the complainants are entitled.
-: 4 :-
Insurance plays a vital role in crop loan in as much as there are frequent crop failures leading to suicide by farmers. It is unfortunate that the O.P. who is a responsible officer of the bank has failed in his duty to insure the crop of the complainants.
In the facts and circumstances of this case and to do justice to the complainants we allow a sum of Rs.5000/- towards mental agony, sufferings and allied factors and Rs.1000/- towards cost of litigation and we order accordingly.
It is hereby ordered as follows :-
The O.P. shall pay Rs.5000/- towards mental agony, sufferings and allied factors and Rs.1000/- towards cost of litigation to the complainants within a period of one month from the date of order.
Dated the 26th day of November 2009
Typed to my dictation
I agree I agree. and corrected by me.
Smt. N.Parwin, Sri A.Mishra Sri S.C. Nayak
Lady Member Male Member President
D.C.D.R.F.(S) D.C.D.R.F.(S) D.C.D.R.F.(S)
Dt.26.11.09 Dt.26.11.09 Dt.26.11.09
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SUBARNAPUR
C.D.Case No. 18 of 2008
Sri Ashok Dani, S/o. Late Dukhishyam Dani, Gandhi Nagar Para, Bolangir, P.O./ P.S./District – Bolangir
………… Complainant
Vrs.
The Proprietor AKAY Steel, Club Road, Bolangir, At/P.O./P.S./District – Bolangir
………… Opp. Party
Advocate for the Complainant …………. None
Advocate for the Opp. Party …………. Sri A.K.Panigrahi
Present
1. Sri S.C.Nayak, President
2. Smt. N.Parwin, Lady Member
3. Sri A. Mishra, Male Member
Date of Judgement Dt.1.12.2009
J U D G E M E N T
By Sri S.C.Nayak, P.
This is complainant’s case alleging deficiency of service on the part of proprietor Akay Steel, Bolangir
The case of the complainant is that the complainant approached corrugated sheets (GCI sheets) for roofing purpose from the O.P. on payment of Rs.27,472/- on 31.7.2008. After fixing it on the roof top for roofing purpose it was found that there was water leakage. The complainant requested the O.P. to replace the defective sheet, but in vain.
The O.P. has filed written version. He has not disputed the purchase of the G.C.I. sheets on payment of Rs.27,472/-. According to him in the bill i.e. given to the complainant it has been clearly mentioned that there is no guarantee regarding the product sold. The complainant has purchased the G.C.I. sheets after verification. The O.P. has also claimed that complaint case is bad for non-joinder of parties as a manufacturer is not a party in this case. Hence he has prayed to dismiss the complaint with cost.
As the complainant remained absent during hearing, we have heard the advocate for the O.P. and also perused the written notes of argument filed by him. We are deciding this case basing on the material available on record and upon examination of the submissions made by the advocate for the O.P.
-: 2 :-
From the averments in the complaint petition, written version filed by the O.P., submissions made by advocate for the O.P. the following points require determination in this case :-
i. Is the complaint bad for non joinder of necessary parties ?
ii. Has there been any deficiency of service by the O.P. ?
We find that the manufacturer of the GCI sheets is a necessary partty in this case. Our view finds support from the decision of the Hon’ble Supreme Court reported in 1992(2) S.C.C. 524 wherein their Lordships have held that necessary party is one without whom no order can be made effectively and proper party is one in whose absence effective order can be made but whose presence is necessary for a complete and final decision of the question in the proceeding. Although the complainant filed a petition to make the manufacturer a party, after filing the said petition he remained absent on so many dates and did not press the petition. In absence of proper address memo we are not in a position to notice the manufacturer. For the reasons stated above we are of the considered view that this complaint case is bad for non-joinder of necessary party.
Now so far as the second point is concerned we ascertained from the receipt filed by the complainant that there has been no provision of guarantee in the product sold. This receipt has been signed both by the complainant as well as O.P. The complainant who is a literate person must have signed it after understanding its implication. Again if at all there was any manufacturing defect in the product sold the O.P. cannot be held liable in as much as he is a distributor and not the manufacturer of the product. So we have not found any deficiency of service on his part.
In the aforesaid premises we come to the conclusion that this complaint is devoid of any merit and the same is dismissed. No costs.
Dated the 1st day of December 2009
Typed to my dictation
I agree I agree. and corrected by me.
Smt. N.Parwin, Sri A.Mishra Sri S.C. Nayak
Lady Member Male Member President
D.C.D.R.F.(S) D.C.D.R.F.(S) D.C.D.R.F.(S)
Dt.1.12.09 Dt.1.12.09 Dt.1.12.09
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SUBARNAPUR
C.D.Case No. 2 of 2008
Ratnakar Seth, S/o. Kalakanhu Sethi, At/P.O./ P.S.–Dunguripali, District – Sonepur
………… Complainant
Vrs.
1. The Collection Manager, ICICI Home Finance Collection Bank, At/ P.O. Ainthapali (Budharaja), P.S./District – Sambalpur
2. Labani Kumar Sandha, S/o. Minketan Sandha, Authorised Agent of ICICI Home Finance Cop. Ltd. At/P.O./P.S. Ainthapali (Budharaja) Sambalpur, At present permanent resident of village Dumerpali, P.O. Gudesina, District – Bargarh
………… Opp. Parties
Advocate for the Complainant …………. Sri G.K.Mishra
Advocate for the O.P.No.1 …………. Sri Sri H.B.Nayak
Advocate for the O.P.No.2 …………. Sri Sri S.K.Sandha
Present
1. Sri S.C.Nayak, President
2. Smt. N.Parwin, Lady Member
3. Sri A. Mishra, Male Member
Date of Judgement Dt.10.12.2009
J U D G E M E N T
By Sri S.C.Nayak, P.
This complaint case has been filed by the complainant alleging deficiency of service on the part of the Collection Manager I.C.I.C.I. Home Finance Collection Bank and Labani Kumar Sandha alleged agent of the Bank.
The case of the complainant is that he applied for loan to purchase scooter before the O.P.No.1 and the O.P.No.1 issued loan to him after entering into a hypothecation agreement. That on 19.3.2007 the O.P.No.2 who was the agent of O.P.No.1 came to the house of the complainant and took Rs.13671/- and issued a payment receipt of Rs.10,171/-. It is the further case of the complainant that the O.P.No.1 has illegally used six numbers of P.D.C. He has alleged that both the O.P.No.1 and 2 with their malafide intention have cheated and harassed the complainant. With these allegations the complainant has prayed for release of the loan amount of Rs.5525/- with interest in favour of the complainant and he has also claimed Rs.50,000/- towards harassment and mental agony.
The O.P.No.1 has filed written version. According to him the act of the collection agent working under the collection franchise was not within his
-: 2 :-
knowledge. He has also averred that the complainant is not a consumer, according to him averment of the petition reveal commission of criminal offence. Hence this case is not maintainable. According to him he has received payment of Rs.10171/- vide receipt No. L 7744355, out of which Rs.675/- has been adjusted towards bouncing charges and the rest amount has been adjusted towards payment of instalment. Accordingly he had prayed to dismiss the complaint with cost.
The O.P.No.2 has denied all the allegations of the complainant in the complaint petition. According to him the complainant is not a consumer within the meaning of the C.P.Act. He has also denied to have received a sum of Rs.3500/- in excess of the due. He has also challenged the jurisdiction of this Forum. Accordingly he has prayed to dismiss the complaint with cost.
From the averments of the complainant in the complaint petition, written version filed by the O.Ps., notes of argument filed by both the parties the following points requires determination in this case :
1. Is the complainant a consumer within the meaning of C.P.Act and has the forum jurisdiction to entertain this complaint case ?
2. Has the O.P. collected excess money and illegally used six numbers of P.D.C. thereby causing deficiency of service ?
So far as the first point is concerned it is the averments of both the O.Ps. that since this is a case of hire purchase agreement it does not come within the purview of the Consumer Forum. We find that in the case of purchase of a Bus under hire purchase agreement and the default in payment of monthly instalment of hire money by the complainant leading to the temporary seizure of the bus by the financing bank without giving notice to the complainant bringing it to their notice that they have not paid the instalment amounts to deficiency of service on the part of the financing bank. (President Kriya Yoga Foundation Trust Vrs. Teem Finance company II (1994) C.P.J. 590 (595) (Orissa) ). From the above decision it is crystal clear that even transaction of bank under hire purchase agreement will also come within the purview of Consumer Forum, hence we are of the considered view that the complainant is a consumer within the meaning of C.P. Act. So far as the jurisdiction of the Forum is concerned although the office of I.C.I.C.I Bank is situated on Sambalpur we find that this bank is carrying on its business in the district of Sonepur through its agent so this forum has jurisdiction to entertain the complaint case.
-: 3 :-
So far as the second point is concerned it is the allegation of the complainant that the O.P. No.2 has collected a sum of Rs.3500/- nine bounced cheque charges of Rs.225/- amounting to Rs.5525. We find from the receipt filed by the complainant that the O.P.No.2 has collected Rs.10171/- vide receipt No.L0107 – 7744355. This is also not disputed by O.P.No.2. This amount has been reflected in the statement of account of the bank filed in this case and this has been mentioned against the payment receipt vide cheque No.CA 7744355 receipt No. L – 7744355/dt.23.3.2007. If actually the O.P.No.2 took Rs.3500/- extra from the complainant, the complainant should have brought it to the notice of O.P.No.1 the financing bank by filing written complaint. But the complainant has not filed the copy of any complaint petition before us. Further more this fact is not corroborated by the version of witnesses. The complainant ought to have filed the affidavit of witnesses in order to prove that the O.P.No.2 took Rs.13671/- giving him a money receipt of Rs.10,171/- So in the absence of any cogent evidence we are not in a position to accept the allegation of the complainant. So we are of the considered view that deficiency of service on the part of the O.Ps. is not proved beyond all reasonable doubt. Further more, the complainant has alleged that the O.P. has cheated him with malafide intention. This forum is not competent to decide such allegation which ought to have been raised either before the criminal court or police.
The case cited by the complainant is distinguishable from the present case and it of no help to the complainant.
Since the complainant has failed to substantiate his allegation against the O.Ps. by cogent evidence, we have no other option then to dismiss the complaint. In the result the complaint is dismissed leaving the parties to suffers their own cost.
Dated the 10th day of December 2009
Typed to my dictation
I agree I agree. and corrected by me.
Smt. N.Parwin Sri A.Mishra Sri S.C. Nayak
Lady Member Male Member President
D.C.D.R.F.(S) D.C.D.R.F.(S) D.C.D.R.F.(S)
Dt.10.12.09 Dt.10.12.09 Dt.10.12.09
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SUBARNAPUR
C.D. Misc. Case No.1 of 2007
1. Mukesh Pandey, S/o. Basudeb Pandey, At/P.O. Sukha, P.S. Dunguripali,
2. Suchitra Padhan, D/o. Bhakta Charan Padhan,
3. Nibedita Panda, D/o. Dhobai Charan Panda,
4. Pragnya Paramita Sahu D/o. Krushna Chandra Sahu,
Complainant No.2 to 4 R/o. village/P.O./P.S. Dunguripali, Dist. Subarnapur
5. Mitu Seth, S/o. Tika Seth,
6. Bijaya Kumar Behera, S/o. Ganesh Behera, At Chhanchani, P.O. Sargul, P.S. Dunguripali, District – Subarnapur
7. Chumbilal Dwari, S/o. Niranjan Dwari, At Cherupali, P.S. Dunguripali, District – Subarnapur.
………… Complainants
Vrs.
1. Bhagaban Padhan, Branch Manager, Dunguripali College, Department of Computer Science, R/o. Hanumanpali, P.O. B.M.Pur, Dist – Subarnapur
2. Bibhudatta Panda @ Mrutunjaya Panda, S/o. Surya Panda, Instructor Cum H.O.D., AISECT, Dunguripali At present At Champapur, P.O./P.S. B.M.Pur, District – Subarnapur.
3. Santosh Kumar Padhi, District Co-ordinator, JVCEP, At Rajendra College Campus(AISECT), P.O./District – Bolangir
4. Sanjeeb Barik, Teacher/Instructor, AISECT at Dunguripali at present at AISECT, Sonepur College Campus, Sonepur.
5. The Director, AISECT, SCOPE CAMPUS, NH – 12 Bhaironpur (Near Mishroad), Hoshangabad Road, Bhopal – 26 (MP)
6. Principal, Dunguripali College, District – Subarnapur.
7. Secretary, Department of Higher Education, Govt. of Orissa, Bhubaneswar.
………… Opp. Parties
Advocate for the Complainants …………. Sri H.B.Nayak
Advocate for the O.P.No. 3 and 5 …………. Sri S.K.Sandha
Present
1. Sri S.C.Nayak, President
2. Sri A. Mishra, Male Member
Date of Judgement Dt.23.12.2009
J U D G E M E N T
By Sri S.C.Nayak, P.
The complainants through their advocate have filed this Misc. Case to setting aside the order passed by this Forum in C.D.C. No.7/2006 on 2.1.2007.
It is the case of the complainants that since the filing of this case the complainants appeared on all dates but the last i.e. 2.1.2007. According to them they are students of AICT of Dunguripali branch and their allegation is regarding non publication of their result and not providing their original mark sheet and certificates.
-: 2 :-
According to them their non appearance on the date of argument was not intentional but due to some bonafide mistake i.e. wrong entry in the diary of the advocate engaged by them. According to them unless the order of dismissal is set aside, the substantive rights of the complainant will be defeated and they will be prejudiced. The O.P.No.3 and 5 have filed objection. The other O.Ps. have not filed objection and they also did not take part in the hearing. The main objection of O.P.No.3 and 5 is that there is no statutory provision for restoration.
We have heard the learned counsel for the complainants as well as learned counsel for the O.Ps. Citing the case of Sri U.P. Chaturbedi Vrs. Deomani Kotedar decided by the Hon’ble M.P. State Commission and the case of New India Assurance Co. Ltd. Vrs. R. Srinivasan decided by the Hon’ble Apex Court learned counsel for the complainant vehemently argued before us that although there is no provision for restoration in the C.P.Act, restoration is also not prohibited by the same Act. Therefore he insisted to restore the same case. Learned counsel for the O.P.No.3 and 5 on the other hand argued to dismiss the petition for restoration as there is no provision for the same in the C.P.Act. We have carefully heard the argument of the learned counsels and also given our anxious thoughts to the points raised by them. Admittedly there is no provision for restoration in the C.P.Act and this has also been fairly conceded by the learned counsel for the complainants in his petition for restoration. It is profitable to quote Section 13 Sub-Section 4 of the C.P.Act, the provision of the said Sub-Section is quoted below :- Section 13 Sub-Section 4 for the purpose of this Section the District Forum shall have the same power as are vested in the Civil Court under the C.P.C. 1908 while trying a suit in respect of the following matters namely ; (i) The summoning and enforcing the attendance of any defendants or witnesses and examining the witnesses on oath, (ii) the discovery and production of any document or other material object producible as evidence, (iii) the reception of evidence on affidavit, (iv) the requisitioning the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source, (v) issuing of any commission for the examination of the any witnesses, (vi) any other matter which may be prescribed.
From the above provision it is clear that Order 9 of C.P.C. has not been made applicable to proceedings under the C.P.Act. The provisions of C.P.C. has been made applicable to proceedings under the C.P. Act only to a limited extent.
-: 3 :-
In New India Assurance Co. Ltd. Vrs. R. Srinivasan’s case in paragraph 18 of the judgement the Hon’ble Apex Court has held “ in absence of the complainant, therefore the court will be well within its jurisdiction to dismiss the complaint for non prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non appearance of the complainant .”
In the instant case we find that this case has not been dismissed on merit it has been dismissed on a date for default when it was fixed for argument. Since in this case students are involved, taking a lenient view and in the peculiar facts and circumstances of this case, following the legal principle as enunciated by the Hon’ble Apex Court in the above mentioned case we set aside the order of dismissal passed by this Forum in C.D.C. No.7/2006 on 2.1.2007 and restore the said case to its original position.
We clarify that this order shall not be treated as a precedent in any other matter as it is passed in the peculiar facts and circumstances of this case.
We find that C.D.C. No.7/2006 is lingering in this forum since 2006. So parties are directed to appear before this Forum in C.D.C. No.7/2006 on 27.1.2010 for argument. No further notice will be issued in the said C.D.C. bearing No.7/2006. The advocate for complainants is directed to collect copy of this order from this office and copy of this order be sent to the O.Ps. under U.C.P. Petition is allowed.
Dated the 23rd day of December 2009
Typed to my dictation
I agree. and corrected by me.
Sri A.Mishra Sri S.C. Nayak
Male Member President
D.C.D.R.F.(S) D.C.D.R.F.(S)
Dt.23.12.09 Dt.23.12.09