Kinetic Engineering Ltd. vs SOMASI SAUNAND

-THIS is a Revision Petition filed by the Revision Petitioner M/s. Kinetic Engineering Ltd. against the order passed by the State Commission, Maharashtra in Appeal No. 85/92 (dated 10th of March, 1992). By this order the State Commission had modified the order of the District Forum to the extent of directing payment of certain amounts to the complainant on account of registration fee, insurance charges for the Luna Moped and awarding interest on the amount to be paid to the complainant while maintaining the rest of the order of the District Forum. The State Commission also directed the Revision Petitioner before us M/s. Kinetic Engineering Ltd. to place a new Luna Moped or to place a sum of Rs. 7,581/, being the price of the Moped at the disposal of the Dealer (now respondent No. 2) for payment to the complainant (now respondent No. 1). In addition it granted costs Rs. 500/- to the respondent-complainant.

THE revision petitioner has attacked the order of the State Commission on the following grounds : (1) THE revision petitioner was a party before the District Forum being Opposite Party No. 1. THE second Opposite Party before the District Forum was its local dealer M/s. Nangia Automobiles, Nagpur who had actually sold the Luna Moped to the respondent-complainant. THE District Forum had passed an order against the Opposite Party No. 2. In regard to Opposite Party No. 1 it had observed that "Opposite Party No. 1 are only the manufacturers, it was the duty of the Opposite Party No. 2 who are locally situated and who have been dealing with the vehicle who should have responded to the forum". THE revision petitioner was not impleaded as a party in the appeal filed by the Opposite Party No. 2 (the dealer at Nagpur) against the order of the District Forum before the State Commission. THE revision petitioner has challenged before us the order of the State Commission on the ground that though he was not made a party in the appeal yet an order has been passed by the State Commission against the revision petitioner. This was in total violation of the principles of natural justice.

(2) Since no order had been passed against the Opposite Party No. 1 and revision petitioner herein by the District Forum, it was beyond the jurisdiction of the State Commission to have passed an order in appeal against the revision peititoner.

(3) No manufacturing defect has been established in the Luna Moped manufactured by the revision petitioner which could have entitled a consumer Forum to come to an adverse finding against it. In this connection, at the hearing before this Commission, the revision petitioner explained that the carburettor of the Moped had been found leaking which could happen due to many causes and that the same was a bought-out item and not one manufactured by M/s. Kinetic Engineering Ltd. THE revision petitioner, therefore, contended that the State Commission had made the manufacturer-revision petitioner liable without arriving at any finding of the precise manufacturing defect. He has emphasized that the revision petitioner''s relationship with the dealer is that of principal to principal and he was not a privy to the contract of sale of the vehicle to respondent-complainant. As such it was imperative to establish a manufacturing defect on its part if it was to be made liable. According to the revision petitioner, at the most the moped requires only change of the carburetor, in case it is defective and it costs only about Rs. 200/- and the whole Moped does not require replacement.

We find considerable merit in the grounds on which the revision petitioner has challenged the order of the State Commission. In fact we fail to understand as to how the State Commission passed an order in appeal against the revision petitioner when it was not arrayed as a party before the State Commission and against whom there was no adverse finding in the order of the District Forum appealed against.

We also notice that after modifying a part of the order of the District Forum, as mentioned above, and stating, "The rest of the order of the District Forum is maintained", the State Commission proceeded to amplify the order by casting liability against the revision petitioner Kinetic Engineering Ltd.

THE order of the State Commission is clearly vitiated by illegal exercise of jurisdiction resulting in material irregularity and therefore we set it aside. It is further ordered that respondent No. 1 will return the amount said to have been paid by the revision petitioner through respondent No. 2 and get back the old Luna-moped within one month of the receipt of this order. Order set aside.