COMPETENT AUTOMOBILES CO. LTD. vs RAVINDER NATH KAMRA

THIS order would dispose of two Appeals No. A370/95 and A-476/95 which are directed against the order of the District Forum II dated 19.5.95. Brief facts are as follows :

COL. Revinder Nath Kamra Booked one Maruti 800 car with M/s. Competent Automobiles Co. Ltd., OP-1. Maruti Udyog Ltd. was impleaded as OP-2 and Punjab National Bank, Sri Nagar was impleaded as OP-3. By letter dated 30.6.92, the complainant cancelled the booking, surrendered the necessary papers and also requested opposite party 1 to refund the amount of advance at the revised address stated in the letter. The letter of the complainant was duly acknowledged by opposite party 1 through its reply dated 13.7.92 which was sent at the revised address. The complainant failed to get refund of the amount. On enquiries it was learnt that pay order dated 25.8.92 for Rs. 14,843.68 had been issued by the manufacturer, Maruti Udyog Limited, and forwarded to dealer, opposite party 1 for being despatched to the complainant. The dealer, i.e. opposite party 1 despatched the refund pay order erroneously to complainant''s previous address resulting in its loss and fraudulent encashment by some unscrupulous person by opening an account with opposite party 3. The complainant was advised to wait till necessary investigation into the matter was completed. The complainant approached District Forum II for the refund of the amount primarily on the ground that he could not be made to wait indefinitely and that he was entitled to the refund of the money on the cancellation of the booking order. The complaint was contested. The stand of the Punjab National Bank, opposite party 3 before the District Forum was that steps were being taken to trace the person who opened an account with them and withdraw the amount of the pay order in the name of the complainant. They however, denied their liability and took objection to the maintainability of the complaint against them. The District Forum held that the dealer was grossly negligent in despatching the pay order at the old address even though it had been notified about the changed address. It was primarily because of the despatch of the pay order on the wrong address that the fraudulent encashment became possible. The manufacturer was held liable on the ground that the dealer was acting as its agent. It was further held that even though the bank could not escape liability, the complaint was not maintainable against it as the complainant was not a ''consumer'' qua the bank. The complaint was allowed and it was directed that opposite party 1 and opposite party 2 would refund to the complainant the amount in dispute alongwith interest @ 18% and Rs. 2,000/- on account of compensation and costs. These appeals have been filed separately by the dealer and the manufacturer.

We have heard Mr. Raman Kapoor, Advocate for the dealer in Appeal No. A-370/95 and Mr. K.P. Sunder Rao, Advocate for the manufacturer in Appeal No. 476/95, Mr. S.K. Pruthi, Advocate for Punjab National Bank and Col. R.N. Kamra, respondent, who argued in person.

THERE is no dispute that change of address was intimated to the dealer only and not to the manufacturer. In fact the pay order regarding the refund was admittedly prepared by, the manufacturer and sent to the dealer for onward transmission to the complainant. The deficiency in service, if any, was thus on the part of the dealer and not the manufacturer. The manufacturer could not, therefore be held liable for the alleged deficiency in service in the facts of this case. Appeal No. A-476/95 filed by the manufacturer must succeed on this short ground. Mr. Kappor, learned Counsel for the dealer raised two contentions: one, for purposes of postal communication the army personal had been divided into two postal zones namely 56 APO and 99 APO. Postal communications are required to be sent c/o one of those zones. It is further the liability of the army postal authorities called APO to ensure delivery of the postal articles to the addressee after ascertaining their complete address including the present place of posting which for various reasons, is not disclosed. What had happened in the present case is that Col. Kamra had been transferred from Zone covered by 56 APO to 99 APO and it was, therefore, incumbent on the Army Postal Authorities in 56 APO to have returned the postal envelop containing the pay order to the sender or to have forwarded the same to 99 APO. In other words the point sought to be made is that there was not more than a technical deficiency in service as far as the dealer was concerned and the Army Postal Authorities were bound to either return the envelop to the sender or to send it to the right addressee where Col. Kamra was posted. Mr. Kapoor submitted that fraud became possible on account of the failure of Army Postal Authorities in delivering the envelop to a wrong person instead of returning to pay order to the dealer in the facts pointed out by him. His second submission is that as far as refund of the money is concerned, the complainant was not a ''consumer'' vis-a-vis the dealer because the complainant was neither buying any goods nor hiring any service from the dealer for a consideration. We do not find any merit in either of these contentions.

IT has not been disputed that the pay order was sent on a wrong address even though the complainant had admittedly intimated his changed address to the dealer. If the pay order has been mis-used by an unauthorised person, it is a matter between the dealer and the Army Postal Authorities as well as the unauthorised person. For this, the complainant cannot be made to suffer. He had booked an order for the car. He cancelled the order which he was entitled to do and asked for the refund of the money deposited by him and there can be no manner of doubt that he was entitled to do so. The dealer may if so advised, have his remedy against the Army Postal Authorities as well as the person who appears to have committed fraud by encashing the pay order by opening a fictitious accounts with the bank. With regard to the second contention, we may observe that booking of the car till delivery and even thereafter till the expiry of the warranty period or in the event of the booking order being cancelled, the refund of the amount constituted, as were, one transaction. The dealer cannot be permitted to direct the transaction into several parts and treat the request for refund of the money as a separate and independent transaction without any connection with the booking of the order and liability of the dealer to refund the amount in the event of the order being cancelled. We, therefore, find no merit in the Appeal No. 370/95 filed by the dealer. We accordingly dismiss the said appeal with costs quantified as Rs. 1,000/- and allow the Appeal No. 476/95 filed by the Maruti Udyog Limited. We make it clear that it will be open to the dealer (appellant in Appeal No. A3/0/95) to have its remedy against the Army Postal Authorities as well as the person who has unauthorisedly encashed the pay order. The costs awarded in these appeals shall be paid by the dealer, M/s. Competent Automobiles. A copy of this order be communicated to the parties as well as D.F. II. Appeal No. 370/95 dismissed with costs. Appeal No. 476/95 allowed.