COL. S.S. CHAHAL vs MOHAN LAL MAKKAR

THE complaint filed by Col. S.S. Chahal was dismissed by District Forum, Ludhiana on May 28, 1997. Hence this appeal by the complainant.

THE complainant approached opposite party No. 1, the dealer of Maruti Car at Ludhiana for the purpose of purchase of Maruti 800 Car. A sum of Rs. 1,70,000/- was paid to the opposite party on April 14, 1995 against a receipt. After two days, another sum of Rs. 10,000/- was demanded by the opposite party, which was also paid. Since the car was not delivered by August, 1995, the complainant approached the opposite party for refund of the money. As inspite of several requests ,oral as well as in writing having been made, the car was not delivered, the complainant approached the District Forum for the relief. THE District Forum without issuing any notice to the opposite part), passed the impugned order that the complainant could not be treated as a consumer as defined under the Consumer Protection Act entitled to move the Fora. In support of the decision, reliance was placed on the decision of the National Commission in Nanu Bhai v. Maruti Udyog Limited & Anr., I (1996) CPJ 91 (NC). Some of the judgments were relied upon on behalf of the complainant, which are as under : "Chief General Manager, MTNL v. Suresh Bhargav, I (1995) CPJ 61 (NC); K.C. Jain Finance Company v. Delhi Automobiles 1996 (1) CPC 605 (Har.); M/s AVI Autos v. Narinder Pal Kaur, 1996 (1) CPC 553, and Bharat Motors v. Usha Rani, I (1995) CPJ 33 (NC)."

Notice of the appeal was given to the respondent, who chose to remain absent. Registered notice sent to the respondent was not received back and after expiry of one month, he was proceeded ex-parte vide order dated October 27,1997. While fixing the next date for arguments, the respondent was further directed to be informed of the date, which the office did. But inspite of that nobody has come forward. We have heard Mr. Sunil Chadha, Advocate for the appellant. During arguments, some assistance was provided by Mr. S.R. Bansal, Advocate, who in some other cases was appearing on behalf of a dealer of motor cars.

In Nanu Bhai v. Maruti Udyog Limited (supra) as the facts would be clear, the complainant had deposited the entire price of the car with the opposite party and the car was not delivered. Only the amount was refunded. The State Commission had held that the complainant was not a consumer and in appeal before the National Commission, it was held that the complainant did not fall within the definition of the word ''consumer'' under the provisions of Consumer Protection Act. While reporting the judgment, the Editor had made the report making reference to the observations of the Supreme Court in Punjab Water Supply and Sewerage Board v. M/s. Udaipur Cement Works & Ors., Civil Appeal No. 3626/1995 decided on 13.11.1995, it was .observed as under : "We do not appreciate the blanket observation of the National Commission to the effect that where the transaction is one of the sale and purchase simplicitor'' no question of deficiency can arise so as to invoke the jurisdiction of the Consumer Forum when there was no case at all of any defect in the goods supplied : ''The National Commission in our view should have appreciated the pleadings of the parties in view of various provisions of the Act.''

THE aforesaid decision of the Supreme Court is reported as I (1996) CPJ 7 (SC). Some of the decisions which subsequently were reported are of the State Commission. THE West Bengal State Commission in R.C. Lachhiramka v. Eastern Coalfields Limited & Ors., I (1998) CPJ 450, Haryana State Commission in Yasmin Sultan & Anr. v. Dr. Rupaben D. Patel & Anr., II (1998) CPJ 40 (NC), the National Commission in Oriental Insurance Company Limited v. Prem Parkash Mehra, II (1998) CPJ 46 (NC), State Bank of India v. M/s. Vanijya Vikash, III (1998) CPJ 59, have held that non-refund of the price would amount to unfair trade practice and gave directions for refund of the same. Since no notice by the District Forum was issued to the opposite party, the exact nature of the objections, if any, it would choose to put forth is only to be guessed or visualised for which firm opinion at this stage is not required to be expressed. Thus a prima facie broad view is being taken that when a consumer deals with the dealer of a manufacturer of Automobile, by depositing either part payment or the whole of the price, hires services of such dealer for obtaining a car from the manufacturer for being supplied and if within the stipulated period, the car is not supplied, obviously there would be deficiency in rendering service on the part of such a dealer entitling the complainant to raise a consumer dispute before the Fora. It is in this view of the matter that the observations made by the Supreme Court in Punjab Water Supply and Sewerage Board''s case referred to above are to be kept in view that every contract of supply of goods need not be a simple contract of sale but it is to be examined as to whether such contract is also coupled with the contract of rendering service!. If that is so, the FORA would have jurisdiction to entertain the complaint finding that there was deficiency in rendering service to grant relief as contemplated under Section 14(1)(c) of the Act. Since the decision of the National Commission in Nanu Bhai''s case (supra), has been doubted by the Supreme Court, it was not proper for the District Forum to dismiss the complaint without issuing any notice to the opposite party and without getting version on merits.

FOR the reasons recorded above, this appeal is allowed. The order of the District FORum dismissing the complaint is set aside. The case is sent back to the District FORum for decision on merits according to law. Parties to appear before the District FORum on January 18, 1999. Copy of the order alongwith records of the District FORum be sent there promptly. Appeal allowed.