B.M.GAUR vs Premier Automobiles Ltd.

THESE three appeals are being decided in one order, as the order appealed against in all the three, is one and the same, being the order of District Consumer Disputes Redressal Forum, Gwalior passed on 17.10.1995 in their Case No. 1459 of 1993 declaring Premier 118 NE Car Chassis No. 40098 Engine No. 4027 as defective and granting relief to the complainant as detailed in the said order.

IN Appeal No. 814/95, the appellant/ complainant before the Forum has requested as under : (i) The order granting relief has been passed by the Forum against respondent No. 3 only, whereas it should have been passed against all the three. (ii) That he should be granted 12% interest on Rs. 2,58,970/from 1.9.1992 to 16.11.1992, which the Forum has omitted to order. (iii) That the proceeding expenses awarded by the Forum should be enhanced.

In Appeal No. 804/95, the appellant (Dealer M/s. Motors Tractors) has requested as under : (i) That the Forum has erred on holding the entire responsibility, only on the appellant (dealer of car) excluding the manufacturer and his service manager. (ii) That the enhanced price of the car Rs. 3,003/- was charged by the appellant on behalf of the manufacturer, who has not disputed the enhancement. (iii) That it is the manufacturer, who is responsible for delay from 10.8.1992 to 16.11.1992 in delivering the car and not the appellant. (iv) That it is the manufacturer, who should have been held responsible for manufacturing defects and not the appellant. (v) That in duration of eight months, car was brought to his workshop on nine occassions and every time except on the last occasion, the complainant had taken back the car with satisfactory note and yet the Forum wrongly held that the car had manufacturing defects. (vi) That the complainant had not prayed for refund of price, but the Forum wrongly ordered refund of the price.

In Appeal No. 829/95, the appellant (manufacturer) has requested as under : (i) That the Forum had no jurisdiction to entertain the complaint, adjudication whereof, was to be based on technical considerations. (ii) That the delay of three months and three days in delivery of the car could not be said to be unreasonable. (iii) That merely existence of defects, when the car was brought for repairs, does not imply that these were manufacturing defects because manufacturing defects can be ascertained only by an expert independent agency. (iv) That the Hon''ble Forum could grant only reliefs prayed for and not beyond such prayer and therefore the Forum wrongly ordered refund of the car.

HEARD the arguments of the appellants and respondents and perused the records of the case. The Forum has granted reliefs as under to the complainant : (i) The respondent No. 3 i.e. the dealer shall refund Rs. 2,62,970/- to the complainant, being the price paid by the complainant and on refund, the complainant shall return the defective car to the dealer. (ii) The dealer shall pay interest on the aforesaid amount at the rate of 12% p.a. w.e.f. 16.11.1992 till the date of payment. (iii) The dealer shall refund Rs. 3,003/- charged in excess alongwith 12% interest w.e.f. 16.11.1992 till its payment. (iv) The dealer shall pay Rs. l.000/as proceeding expenses and Rs. 3,000/- as Advocate''s tee to the complainant.

THE undisputed facts in this case are as under : (i) That in the quotation dated 5.8.1992, issued by dealer. Motors & Tractors, Gwalior to the complainant (Ex. P-5), the price of the car Premier 118 NE (A/C) was quoted as Rs. 2,62,967/- inclusive of transportation, temporary registration and transit insurance charges etc. (ii) That the complainant deposited a draft for Rs. 2,58,970 with M/s. Motors & Tractors, Gwalior on 10.8.1992 and the said dealer issued Receipt No. 363 dated 10.8.1992 (Ex. P-l). THE DD was payable at SBI branch, Deman. (iii) That the dealer M/s. Motors & Tactors received in cash at Gwalior Rs. 4.000/- on account of transporation charges, vide Receipt No. 367 dated 16.11.1992 (Ex. P-3) and Rs. 3.000/- stating as on accout of balance payment of 118 NE, vide Receipt No. 366 dated 16.11.1992 (Ex. P-4). (iv) That earlier in their replies before the District Forum, all the three non-applicants had taken the plea that the car was delivered to the complainant on 11.11.1992 at Daman as per delivery note dated 11.11.1992, but in their appeal before us all of them have conceded that the car was delivered to the complainant on 16.11.1992 at Gwalior. This is so, in view of the findings of the District Forum in para 11 of their order which in brief are as under : (a) THEre is nothing on record to show that the complainant had himself gone to Daman Depot to take delivery of the car. Thus the letter-cum-delivery receipt dated 11.11.1992 falsely shows that it was executed at Daman. (b) It is wrong to say that the car was delivered to the complainant at Daman on 11.11.1992. It was actually delivered to the complainant on 16.11.1992 at Gwalior, by the dealer after having been transported to Gwalior, and the amount of Rs. 4,000/- as transportation charges and Rs. 3.000/- as balance were received by the dealer on 16.11.1992 at Gwalior vide receipts marked Ex. P-3 & Ex.F-4. (v) That in their reply, the non-applicant Nos. 1 & 2 i.e. mainly the manufacturer, in their reply filed before the District Forum have argued as under in para 6 of the reply as under : "Without prejudice to above it is submitted that there is no privity of contract between the complainant and the answering opposite parties inasmuch as the car was purchased from opposite party No. 3. THE relationship between the answering opposite parties and the opposite party No. 3 is on principal to principal basis and as such as per the settled law in this regard the answering opposite parties cannot be held liable in respect of functions/obligations which are required to be performed by the other parties." (vi) That the preliminary objections raised by non-applicant Nos. I & 2 were rejected by the District Forum vide their note-sheet order dated 9.3.1994 against which, no appeal or revision was filed. (vii) That the District Forum vide their note sheet dated 6.2.1992 made cer tain observations and gave decisions worth being noted as under : (a) That N.A. Nos. 1 & 2 produced affidavits of only two persons namely Servashri N.K. Choudhran and S.K. Soni and said that they do not want to produce any other proof. (b) That Mr. Mohit Dhingra, Advocate for N.A. Nos. 1 & 2 did not agree to produce Shri M.K. Choudhran for cross-examination and that this fact be recorded in Shri Choudhran''s affidavit. (c) That Shri S.K. Soni has not stated any facts in his affidavit but has simply stated that the contents of reply of non-applicant Nos. 1 & 2 are true and therefore, it is not being treated as part of evidence, so also Shri Chaudhran''s affidavit is not being treated as part of evidence for almost similar reasons. (d) THE application for appointment of an independent agency for inspection of the car is rejected because the N.A. Nos. 1 & 2 have not given any specific reply regarding the main manufacturing defect of leakage of oil from the engine and they gave no reason for not giving specific reply. (viii) THE N.A. Nos. 1 & 2 filed no appeal or revision against this order and case remained pending for more than six months and on 24.8.1995 N.A. Nos. 1 & 2 again said that they do not want to produce any evidence in "trial denovo " and part arguments were heard on 6.9.1995 and on 26.9.1995, the Forum recorded an order-sheet, that the parties are given an oppurtunity to take any action they like in respect of Forum''s observations and case was adjourned for 4.10.1995. But the parties concerned, even now, took no action and after hearing final arguments, orders were passed on 17.10.1995.

There is no provision for an interim order in the Consumer Protection Act. But, if any such order has been passed and a party is denied of its rights and opportunities, the said order could have been challenged in revision. There is no bar to revision but N.A. Nos. 1 & 2 filed no revision nor put forth any objection even in ''de novo'' trial. Even after they were again given an opportunity vide Forum''s Order-sheet dated 26.9.1995, they took no objection to earlier bindings. Since the arguments of N.A. Nos. 1 & 2, contained in para 6 of their reply, as quoted in para 7(v) of this order, were never controverted or objected to by the dealer, before the District Forum, this argument of the dealer in Appeal No. 804/95, is now of no avail that the Forum erred in holding the entire responsibility only on the dealer excluding the manufacturer and Service Engineer, more so when the dealer never raised this point in his reply or at any stage before the Forum, that he alone or jointly cannot be held responsible for any defects in the car. Similarly, complainant has no basis to argue now that the order of the Forum should have been passed against all the non-applicants and not only non- applicant No. 3.

ONCE a price has been quoted by the dealer on 5.8.1992 and entire cost of the car as quoted, had been received on 10.8.1992, the dealer had no right to charge enhanced price, whatever may have been the agreement between him and the manufacturer. As such this argument of the dealer in his Appeal No. 804 / 95 is of no use, that the manufacturer had not disputed the enhancement. Similarly, the liability for delay cannot be forced on the manufacturer, once full price as quoted, had been received, in advance, by the dealer.

THIS argument of the complainant (appellant in Appeal No. 814/95) is quite correct that the Forum has omitted to order grant of 12% interest on Rs. 2,58,970/from 1.9.1992 to 16.11.1992, because the District Forum has quite categorically stated in para 22 of their order, as under "xxx xxx xxx xxx" The opposite parties have not challenged this finding of the Forum in their appeals. Hence, this argument of the complainant deserves to be accepted. However, the other argument of the complainant in his appeal is not worth being considered, that the proceedings expenses should be enhanced because he has not explained as to how the award is less than what should normally have been. The arguments of the manufacturer in Appeal No. 829/95 regarding jurisdiction or delay in delivery need not be taken into consideration now at this stage in view of contents of para 6 of their reply filed by N.A. Nos. 1 & 2 before the District Forum.

The dealer has argued in his Appeal No. 804/95 that every time on nine occasions except the last, the complainant had taken the car back with satisfactory note, as such the Forum wrongly held that car had manufacturing defect. The manufacturer has argued that mere existence or defects does not imply that these were manufacturing defects, unless ascertained by an expert independent agency. In this connection, the District Forum has given in detail, the reasons for his conclusion that there were manufacturing defects in the car. The Forum has dealt with all the relevant points or evidence on record as received or as not furnished by parties concerned. N.A. Nos. 1 and 2 totally failed to furnish any evidence worth the name in this connection. They rather threw all the responsibility on the dealer (N.A. No. 3) and were almost silent spectators in the entire proceedings before the District Forum. Hence, we do not, find any reason to disagree with the findings of the Forum in this regard.

THE District Forum committed no error in ordering refund of the price of the car in place of replacement because the Act authorises the Forum to order the opposite party to do one or more of the things named in sub-paras of para 14 (i) of the Act. In this connection also, the arguments in Appeals No. 804 and 829 merit no consideration. Hence, except the argument of the complainant in Appeal No. 814 of 1995 regarding grant of 12% interest on Rs. 2,58.970/- from 1.9.1992 to 16.11.1992, all the argument of all the three appellants in their appeals being not tenable, all the three appeals are dismissed, with the exception, that the N.A. No. 3 before the District Forum is hereby directed to pay to the complainant 12% interest on Rs. 2,58,970/- from 1.9.1992 to 16.11.1992, in addition, to reliefs already ordered by the District Forum. THE parties shall bear their own costs. Appeals dismissed.