KULWANT SINGH vs Narinder Sekhri And Ors.

CHALLENGE in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986, by the Complainant, is to the order, dated 23.04.2008 passed by the Punjab State Consumer Disputes Redressal Commission at Chandigarh (for short "the State Commission") in Appeal No. 784 of 2006, preferred by the Opposite Parties in the complaint, being No. 1164/04. By the said impugned order, the State Commission has partly allowed the Appeal against order dated 19.04.2006, passed by the District Consumer Disputes Redressal Forum, Amritsar (for short "the District Forum") and has affirmed the finding of the District Forum to the effect that the Respondents, Opposite Parties in the Complaint had deprived the Complainant of the user of his tractor. Observing that the Complainant had been deprived of the user of his tractor for a long time, from 13.08.2004 to 11.04.2008, the State Commission has modified the said order to the extent that Complainant shall be entitled to a compensation of 25,000/ - only, as against a compensation of 1,20,000/ - awarded by the District Forum. The State Commission has directed its Registry to release the amount deposited by the Respondents at the time of filing the Appeal to the Complainant, with interest, if any, in full and final settlement of his claim.

IT appears that on receipt of the said order, the Complainant filed a Miscellaneous Application, being MA No. 1086/2008, before the State Commission praying for review of the said order, inter -alia, on the ground that while deciding Appeal No. 784/2006, the State Commission did not take into consideration an earlier order, dated 10.07.2006, passed by the State Commission in Complainant''s Appeal, being Appeal No. 872/2006. By the said order, (dated 10.07.2006), the Appeal had been dismissed in limine by the State Commission, holding that the compensation of 1,20,000/ - awarded by the District Forum with costs was sufficient and proper. The said application having been dismissed by the State Commission vide order dated 25.11.2008, the correctness and legality of this order, is also questioned in this Revision Petition. In brief, the material facts giving rise to the present Revision Petition, as culled out from the Complaint, are: that on being lured by Respondent No. 2, an Agent of the Respondent No. 1, Friends Tractors, sometime in early 2004, the Complainant purchased an Eicher Tractor 5660, after raising a loan of 3,40,000/ -. While doing so, the Complainant had handed over his old Tractor, valued at 50,000/ -, to Respondent No. 2, with the assurance that in addition to the adjustment of the said amount of 50,000/ - against the value of the new Tractor, a sum of 10,000/ -, incurred in arranging for the loan applied for by the Complainant and a further sum of 10,000/ - would be deposited by him towards installments of the said loan. However, in June 2004 the said Tractor developed some problems and became non -functional. Since the warranty period of the Tractor had not yet expired, the Complainant requested the Respondents to replace the said Tractor but of no avail. On 13.08.2004, in the absence of the Complainant, both the Respondents came to his house and took away the said Tractor, assuring his family members that they would provide a new Tractor to the Complainant. All his attempts to get a new Tractor from the Respondents having failed, the Complainant filed the Complaint before the District Forum, praying for a direction to the Respondents to deliver a new Tractor as replacement for the faulty Tractor; pay a sum 3,00,000/ - as damages suffered due to negligence and illegal act of the Respondents and 1,00,000/ - as damages for illegal harassment caused to him.

ON consideration of the material on record, the District Forum observed that despite affording opportunities, the Respondents had failed to answer the allegations leveled against them in the Complaint. Rather, it was admitted by them that they would return the tractor but had failed to explain as to what prompted them to detain the tractor of the Complainant. Consequently, while holding that it was a clear case of unfair trade practice and deficiency in service on the part of the Respondents, the District Forum allowed the Complaint and directed the Respondents to return the Tractor of the Complainant in the same condition as it was taken in possession by them, besides paying 1,20,000/ - as compensation for unjustly and illegally keeping the tractor and in the process causing loss to the Complainant. It was also directed by the District Forum that if the Respondents were unable to return the said Tractor, they would refund the amount of 3,70,000/ - along with interest at the same rate as was being charged on the loan taken by the Complainant for purchase of the Tractor. A compensation of 10,000/ - and litigation costs, quantified at 1000/ -, were also directed to be paid to the Complainant. However, it was directed that in case the Tractor is returned in the same condition, then the Respondents would be liable to pay only a sum of 1,20,000/ - and costs of 1000/ -.

BEING dissatisfied with the said order, both the Complainant and the Respondents filed Appeals before the State Commission. As noted above, the Appeal filed by the Complainant was dismissed in limine vide order dated 10.07.2006, maintaining the compensation amounting to 1,20,000/ - awarded by the District Forum. However, by the impugned order, the State Commission has partly allowed the Appeal preferred by the Respondents, reducing the aforesaid compensation to 25,000/ -. As stated above, Complainant''s Miscellaneous Application has been dismissed by the State Commission, vide order dated 25.11.2008, observing that the Complainant had concealed the fact of dismissal of his Appeal at the time of hearing of Respondents Appeal and further, it did not have power to review its orders. We have heard Learned Counsel for the Complainant and Respondent No. 1. Respondent No. 2 remained unrepresented, despite service of notice.

AT the outset, we may note that although the Appeal instituted by the Complainant on 04.07.2006 was taken up for consideration on 10.07.2006 and was dismissed in limine on the same very day, but by that time, the Respondents had already filed Appeal on 08.06.2006, but somehow it was taken up for final hearing on 23.04.2008. Although it is not clear from the record as to when notice in Respondents Appeal was issued to the Complainant but in all probability it may not have been served on him by 10.07.2006, on which date his Appeal was dismissed. Since the Appeal was dismissed without issuing notice to the Respondents, they are entitled to benefit of doubt in contending that they were not aware of dismissal of Complainant''s Appeal. But the conduct of the Complainant in not bringing to the notice of the State Commission the order passed by the State Commission in his Appeal, at the time of hearing of the Respondents Appeal, where he was duly represented by a Counsel, definitely tantamount to concealment of material information and in the normal course this Revision Petition could be dismissed on that short ground. However, since two conflicting orders in Appeals against the order of the District Forum have come in existence, the issue as to which one of the two orders is enforceable, needs to be resolved. Here again, perhaps, the safest course could be to set aside the impugned order and remand the case back to the State Commission for fresh adjudication on Respondents Appeal by taking into consideration the order passed by it in Complainant''s Appeal. But having regard to the quantum of the amount in dispute, viz. 95,000/ -, in our view, adoption of the said course would neither be expedient nor worthwhile. Accordingly, we propose to decide the question of compensation, payable to the complainant on account of alleged financial loss on account of detention of the tractor for almost four years, at this stage itself.

IN the impugned order, the State Commission has recorded that during the pendency of the Respondents Appeal, the parties had reached compromise regarding the delivery of the Tractor and in terms thereof, his Tractor was returned to him. Complainant''s acknowledgement to that effect had been taken on record by the State Commission. Thus, the grievance of the Complainant which had survived for consideration of the State Commission was whether or not, the Complainant was entitled to compensation amounting to 1,20,000/ - along with costs of 1,000/ - from the Respondents. It is clear from the impugned order that for arriving at the conclusion that award of compensation of 25,000/ - would serve the ends of justice, the State Commission has observed that the Complainant had failed to furnish any document to quantify the financial loss suffered by him; there was no evidence in record to show that he had made any effort to take back the delivery of the tractor from the Respondents; and that the question whether the Tractor was handed over by the Complainant to the Respondents or vice -versa was not material. Further, in its order dated 25.11.2008, passed in the Miscellaneous Application filed by the Complainant, the State Commission has noted that during the course of hearing, the Bench had suggested to the Respondents to pay to the Complainant a sum of 50,000/ - over and above 25,000/ - as awarded vide its order dated 23.04.2008 in full and final settlement of the claim made by him against them. Though the proposal was acceptable to the Complainant but the Respondents offered to pay only an additional amount of 20,000/ -. In our opinion, having regard to the fact that the finding of the State Commission to the effect that the Complainant was deprived of the Tractor for a long time from 13.08.2004 to 11.04.2008, has not been challenged by the Respondents, the award of an additional compensation of 50,000/ -, as suggested by the State Commission was just and fair. Consequently, for the aforegoing reasons, the Revision Petition is partly allowed; the final order dated 23.04.2008 is modified to the extent that Respondent No. 1 shall pay to the Complainant a further sum of 50,000/ - as compensation, as against the compensation of 1,20,000/ - awarded by the District Forum, in addition to what has already been directed by the State Commission in the said order. The said additional amount shall be paid within four weeks of the date of receipt of a copy of this order, failing which it shall carry interest @ 9% p.a. from the date of this order till realization.

THE Revision Petition stands disposed of in the above terms, with no order as to costs.