KAMAL AND COMPANY vs SUDEEP BUCHRA-/

ALTHOUGH the case was listed for disposal of the stay application but on joint request the case was heard for final disposal as the parties were ready to finally argue the matter even in absence of the record because the facts are not mainly in dispute.

THE complainant Sudeep Buchra booked one Fiat Uno car manufactured by Premier Automobiles Ltd. through the agency of Kamal & Co. who happened to be their booking dealer at that time. It is alleged that a sum of Rs. 21,000/- was deposited by them through a demand draft in the name of Premier Automobiles Ltd. but when the car was not delivered in time the complainant requested the non-petitioners to refund him back the deposited amount alongwith interest. After hearing both the parties the District Forum ordered that the deposited amount be refunded with interest and it has further ordered that Rs. 1,500/- be paid as compensation for mental agony and Rs. 500/- be paid as costs of litigation. It is against this order that non-petitioner No. 2 Kamal & Co. has preferred this appeal. We have heard Mr. Deepak Chaudhary appearing for the appellant and Mr. Sunil Jain appearing for the respondent.

Admittedly the amount of Rs. 21,000/- was accepted against the price of the car in the name of Premier Automobiles Ltd., Lal Bahadur Shastri Marg, Kurla, Bombay. This amount was accepted by Kamal & Co. through a demand draft on behalf of M/s. Premier Automobiles Ltd. The demand draft was prepared in the name of Premier Automobiles Ltd. and, therefore, the contention of Mr. Deepak Chaudhary is that the District Forum has erred in decreeing the claim of the complainant against the agent or dealer, i.e. Kamal & Co. It could have decreed the claim against Premier Automobiles Ltd. but not against Kamal & Co. so far this deposit of Rs. 21,000/- is concerned.

MR. Sunil Jain appearing for the complainant-respondent submits that M/s. Kamal & Co. were the agent and dealer of Premier Automobiles Ltd. at that time. It is they who accepted the amount and, therefore, the District Forum was right in awarding the claim against both the non-petitioners jointly and severally. We have bestowed our thoughtful consideration to the rival contention of the parties. Mr. Chaudhary has drawn our attention to a decision of the National Commission rendered in 4reported in I (1995) CPJ 33 (NC), wherein the Hon''ble National Commission has held as under : "The order for refund should have been passed only against the manufacturer who was also a party before the State Commission and is also a party in this appeal. We set aside the order of the State Commission insofar as it is directed against the appellant herein, namely the dealer and make it clear that the order for refund of the money, passed by the State Commission will remain in force and will be enforceable only as against the second respondent M/s. Sipani Automobiles Ltd."

HE has further drawn our attention to one more decision of the National Commission rendered in M.S. and S. Engineers v. K.V. Giri & Ors., reported in III (1994) CPJ 114 (NC), wherein the Hon''ble National Commission has held as under : "Petitioner who is only the dealer has been made jointly responsible alongwith the manufacturer of the vehicle for refunding the amount of deposit that had been made by the respondent towards the cost of the car is not just or legal. The record clearly discloses that the demand draft which was presented by the complainant in payment of the deposit of price was drawn in favour of the manufacturer and the dealer had duly forwarded it to the manufacturer immediately after receipt of the same from the respondent. In these circumstances the liability to refund the amount was only that of the manufacturer."

From the aforesaid two authorities of the Hon''ble National Commission, it is crystal clear that if any amount has been deposited as advance against the cost of the car in the name of the manufacturer, no order can be passed to recover that amount from the dealer or the agent of the manufacturer. No contrary authority or view has been cited by Mr. Sunil Jain which may show that the order of the District Forum decreeing the claim against Kamal & Co. can be sustained. Under these circumstances we have no option but to follow the decisions rendered by the Hon''ble National Commission and order that although the order of the District Forum will remain in force against M/s. Premier Automobiles but so far as it relates to the appellant i.e. M/s. Kamal & Co. is concerned this has to be set aside. In the result the appeal partially succeeds, the order of the District Forum, Jaipur IInd dated 24.8.1998 is set aside so far as it has been decreed it against appellant M/s. Kamal & Co. However, the order of the District Forum against M/s. Premier Automobiles as regards the refund of the cost and award of compensation and costs of litigation is maintained and sustained. The appeal stands disposed of accordingly on merits. The costs of the appeal will be easy. Appeal partly allowed.