K.M.AHAMED KUNJU vs HERO HONDA MOTORS LTD.

THIS is a Revision Petition against the order dated 8th June, 1994 passed by the State Consumer Disputes Redressal Commission, Kerala in Appeals Nos. 148,214,276,499,501,502,537 and 404 of 1992. The Revision Petition has been filed by Shri K.M.Ahamed Kunju, who was respondent before the State Commission, Kerala is Appeal No. 276 and Complainant before the Consumer Disputes Redressal Forum, Kozhikode inCCNo.90/KKD/91.

BRIEFLY , the facts of the case as seen from the records are as follows. The Petitioner had registered for a Hero Honda Motor Cycle with M/s. Texco Motors (P) Ltd., Kozhikode by remitting Rs. 500/- through demand draft dated 26.2.88,and M/s. Hero Honda Motors Ltd., New Delhi allotted a priority number for the same. The Petitioner thereafter also remitted an amount of Rs. 16,000/- to the Texco Motors (P) Ltd., towards the cost of the Motor Cycle on 31.12.88. Although the Complainant was promised delivery of the vehicle in March, 1989, he did not get the same. The Comp lainant finally wrote to Hero Honda Motors Ltd. through letter dated 25.10.90 about the non-delivery of the vehicle to him and requesting the Company to refund the amount with interest. The Company replied to him on 29.5.91 that the dealership of Texco Motors (P) Ltd., had been terminated on 21.2.91 and also drew his attention to the notice published by them in this regard in the "Mathrubhoomi" dated 19.10.90. In the complaint before the District Forum, M/s. Texco Motors (P) Ltd., was opposite party No. 1 and M/s. Hero Honda Motors Ltd., was opposite party No. 2. Opposite Party No. t, M/s. Texco Motors (P) Ltd. was absent. In their order dated April 27, 1992, the District Forum held that the Complainant had paid the cost of the vehicle long before the dispute between the Hero Honda Motors Ltd., and the Texco Motors. In the result, the District Forum directed the opposite parties to deliver to the complainant a Hero Honda Motor Cycle within a period of two months or alternatively to refund the price with interest at 12% per annum from the date of deposit and a compensation of Rs. 5,000/-. Aggrieved by this order, M/s. Hero Honda Motors Ltd. went in appeal before the State Commission. The State Commission considered a bunch of common appeals pertaining to this matter. The case of the Revision Petitioner was also one of them bearing Appeal No. 276, and M/s. Texco Motors (P) Ltd. was Respondent No. 2. The said Respondent No. 2 did not file any appeal and therefore the State Commission held that the order passed by the District Forum against M/s. Texco Motors (P) Ltd. had become final in all these cases. The State Commission have observed, inter alia, that though in the memorandum of appeals as originally filed, the contention that the Texco Motors (P) Ltd. was not the agent of M/s. Hero Honda Motors Ltd. was not taken or raised, the Appellant raised it as an additional ground stating that according to the agreement with the dealer, no relationship of agency was constituted and that the relationship was on principal to principal basis. After the hearing of the appeal was over, the Appellant also placed before the State Commission the decision of this Commissiorwin Hero Honda Motors (P) Ltd. v. Muralidharan &Anr. (Revision Petition No. 305 of 1993). This Commission had held in that case that the relationship between Hero Honda Co. and the Texco Motors (P) Ltd. was as principal to principal. Following this decision of this Commission, the State Commission observed that though there was no relationship of principal and agent between the Company and the dealer, if the payments were received by the former from the complainants, then the Company was responsible to refund the amount so received together with interest. It was also noted in the course of hearing before the State Commission that, (i) the Company had refunded the claim of 20 customers who had booked with the dealer, (ii) the Counsel for the Company was not able to deny that refund was made to customers who were below in the priority allotment, and (iii) tf le Company was not able to explain why the amounts were refunded to these 20 customers, if no liability was foisted on the Company; the only explanation offered was that the Company wanted to keep good customer relationship and keep the Company''s reputation high. Although the State Commission found that there was a balance of Rs. 4,41,073.63 to the credit of the dealer at the time of termination of the dealership, the Commission could not find clear evidence to show that the amounts collected from the complainants towards the price of vehicle were sent to the Company except the amounts collected for priority allotment. In the light of this, the State Commission held that the Company cannot be fastened with the liability except in regard to the amounts collected for priority allotment together with interest at 12% per annum.

IN the Revision Petition, M/s. Hero Honda Motors Ltd. ,is respondent No. 1 and M/s. Texco Motors (P) Ltd. is respondent No. 2. While respondent No. 1 have filed a reply, respondent No. 2 has neither filed any papers nor made appearance before this Commission. The Revision Petitioner-Complainant has reiterated the following facts: (l)he had made payment in 1988 i.e. much before February, 1991 when the dealership was terminated, (ii) why refund was made to 20 customers by M/s. Hero Honda Company if no liability was fastened on the Company, and (iii) facts and circumstances of his case were different from those in the earlier case where this Commission had taken the said decision. The Revision Petitioner had prayed for setting aside the order of the State Commission and for upholding the order of the District Forum and passing such order as this Commission deems fit and proper in the facts and circumstances of the case. In their reply, the Company had observed, inter-alia, that the Revision Petitioner had failed to show before the State Commission and this Commission that the payment of the amount towards the price of the motor cycle which he had made to the dealer reached the hands of M/s. Hero Honda.

WE have gone through the records and heard the Counsel appearing on both sides. The Commission is aware that it is an impossible task for the consumers to establish that the payments that they have made to the authorised dealer of the Company have in fact reached the manufacturers. However, evidence is not available in the records to show that the price of the vehicle paid by the Complainant to the dealer has been passed on to the Company. In the facts and circum- stances of the case, we confirm the order passed by the State Commission that the Hero Honda Motors Ltd., will refund the amount paid by the Complainant towards priority allotment together with interest at the rate of 12% per annum. In so far as the Texco Motors (P) Ltd. did not file any reply or appear before us, the order passed by the State Commission that the order of the District Forum is final, stands. In the result, the revision petition is disposed of as above. There will be no order as to costs.