MODERN AUTOMOBILES, AMBALA vs GOBIND RAM KAJERIWAL

- THIS appeal has been re-listed in the wake of the observation made by the National Commission in Revision Petition No. 113 of 1991 ''M/s Modern Automobiles v. Govind Ram Kajeriwal'' decided on the 13th of December, 1991. Therein it was inter alia recorded as follows :- "We have gone through the records of the case. We find it stated in memorandum of revision petition (it is not controverted on the side of the respondent) that in addition to the misconceived appeal which the petitioner had filed against the notice dated 27.2.91 issued by the District Forum, he had also filed a regular appeal against the main decision rendered by the District Forum. It is also stated that a copy of the order of the District Forum had been obtained by the petitioner only on 15.3.1991. The State Commission is requested to verify whether these averments contained in the revision petition are correct and if so dispose of the appeal filed against the main order on the merits in accordance with law uninfluenced by anything contained in the order now to be revised."

AS desired the matter has been verified from the record and it would appear that the appellant had indeed also filed a regular appeal against the main decision rendered by the District Forum dated the 13th of September, 1990 and a copy thereof was also subsequently placed by him on the record. That being so we proceeded to decide the case on it''s merits. The facts lie in a narrow compass. The respondent Shri Gobind Ram Kajeriwal had booked a Maruti 1000 car through their dealers M/s Modern Automobiles, Ambala way back on the 16th of December, 1989 and also deposited a sum of Rs. 25,000/- vide draft dated the 12th of December, 1989. Subsequently there was a draw of lots for the said car in which the respondent was admittedly unsuccessful on the 23rd of January, 1990. It would appear that M/s Maruti Udyog Limited forwarded the refund order dated 24th of February, 1990 in favour of the respondent to M/s Modern Automobiles, Ambala for onward transmission to the respondent. It is not in dispute that the appellants later dispatched the said refund order to the respondent on the address given by him (N.C. Jindal Colony, Satrod Khurd, Hisar) in his booking order by a registered letter on the 27th of March, 1990. It is common ground that the said letter was not delivered to the respondent because he was not available at the address afore-mentioned and the Hisar Post Office after verification through their employees returned the same to the appellants. Apparently unaware of the new address of the respondent the appellants retained the refund order in safe custody till the respondent contacted them and the same was delivered over as desired by him to his authorised agent Mr. Arora on the 22nd of May, 1990.

The respondent-claimant however, preferred the complaint before the District Forum alleging that the appellants had been negligent in refunding the aforesaid amount to him and had caused great inconvenience and mental tension to him and sought compensation to the tune of Rs. 1,000/- and also impeded the Superintendent, Post Office, Hisar as Opposite Party No. 1 in the said complaint. Notice of the complaint was issued to the opposite parties and they duly filed then replies thereto. The complaint was fixed for hearing on the 25th of July, 1990 before the District Forum. But on that date the complainant failed to turn up and as such the complaint was dismissed for default.

HOWEVER, on the receipt of the order of dismissal of the complaint, the respondent later made an application for the restoration thereof on the 9th of August, 1990. Notice of this application for restoration was issued to the opposite parties by the District Forum on the 13 th of August, 1990 directing them to file a reply thereto by the 28th of August, 1990. HOWEVER, on that date neither of the opposite parties put in appearance (it is the firm case of the appellants that they did not receive any notice dated the 13th of August, 1990 at all) and the District Forum vacated the order of dismissal and the complaint was restored for hearing. HOWEVER, no further notice to the opposite parties was issued to appear and contest the complaint and forthwith the District Forum proceeded ex-parte against the appellants and the Superintendent, Post Office, Hisar. Though the District Forum noticed from the record that the Post Office had not delivered the registered letter to the respondent complainant the later expressly declined to press any claim against the Post Office me sought relief against the appellants. Holding somewhat summarily that there had been a delay of three months betwixt the date of the refund order and its actual delivery to the respondent, the District Forum directed the payment of the interest amount of Rs. 750/- and another Rs. 250/- on account of inconvenience and mental disturbance and consequently awarded Rs. 1,000/- in all to the respondent to be paid within one month on pain of action under Section 27 of the Act. Learned Counsel for the appellants has forcefully contended that assuming (without conceding) that the respondent had, hired the services of the appellants for the booking of the car, there was not established the least deficiency in the said services for the purposes of law which could warrant either the grant of compensation or the payment of penal interest. Indeed it was argued that the appellants had been most diligent in their duty within the terrors of the contract to refund the amount and the boot was on the other leg in so far the respondent had either not given a correct address at Hisar or has shifted there from to Bhiwani without any instructions to the Post Office to deliver his post to him at the new address. It was the appellants case that neither any negligence nor any deficiency in service could be placed at their door in the present case.

THE submission of the learned Counsel indeed has considerable merit therein. What would first meet the eye is the fact that owing to the respondent-complainant''s own default his complaint stood validly dismissed on the 25th of July, 1990 itself. Subsequently he sought restoration and a notice to that effect only dated the 13th of August, 1990 was issued to both the opposite parties for filing their reply and appearance by the 28th of August, 1990. From the averments in the appeal which could not be effectively converted, it has been forcefully urged that the said notice was in fact never received by the appellants and they had no knowledge of the renewed proceedings against them whatsoever. THE District Forum in its order has also not recorded anywhere that the said notice was duly served or had been refused etc. In any case the said notice was for the purpose of showing cause why the complaint should not be restored. However, the District Forum proceeded summarily on that very date to both restore the complaint and also to proceed ex-parte against the appellants. With respect this was hardly warranted and the appellants are not wrong in raising a grievance against the same. THE order under appeal is thus liable to be set aside on this short ground alone. Learned Counsel for the respondent faced with the somewhat up-hill task of supporting the order under appeal had prayed that the matter be remanded for a fresh hearing on this ground, if necessary. We are unable to agree and to prolong this litigation which has proceeded from the District Forum to the National Commission and back again any further. This is so because the record leaves no manner of doubt that it has not at all been established that there was such a deficiency in services or negligence on the part of the appellants which would warrant any relief against them. It would appear that without any unreasonable delay M/s Maruti Udyog Limited prepared the refund order on the 24th of February, 1990 and forwarded it to the appellants for dispatch to the respondent. However, the actual date of transmission by M/s Maruti Udyog Limited of the refund order to the appellants or the time taken in post etc. for its receipt had not been established. It is the admitted position that the appellants on the 27th of March, 1990 forwarded the refund milder a duly registered cover to the address given by the respondent. There was thus not the least default on their part in this context. On the other hand it would appear that either the respondent had not given a correct and complete address initially or as has been forcefully suggested by the appellants, he had meanwhile shifted his residence to Siwani in. Bhiwani District without any instructions to the Post Office. Consequently the registered letter despite the enquiries made by the Hisar Post Office could not be delivered to him and the same was per-force sent back to the appellants. Not aware of any fresh address the appellants could do no better then keep the same in safe custody till they could locate the respondent. It would appear that the later first contacted them on telephone and also instructed them later that the refund order was to be delivered to his representative who will collect the same personally. Accordingly he then authorized one Mr. O.P. Arora to do the needful who received the refund order from the appellants and transmitted it on to the respondent. In this context it is somewhat elementary that little or no blame can possibly be placed on the shoulders of the appellants. The District Forum was apparently influenced by their failure to appear before it and not only proceeded ex-parte against them but took a somewhat strict and if one may say a harsh view in imposing penal interest and also granting compensation which could be awarded only in the event of negligence. That has very far from being established in the present case. For all these reasons, we are constrained to hold that in the light of all the established facts, the order under appeal cannot be sustained. The same is hereby set aside and the appeal is allowed without any order as to costs.

IT was stated at the bar that sum of Rs. 1,000/- had been deposited by the appellants under protest with the District Forum which as yet has not been delivered to the respondent. In view of the success of the present appeal the District Forum would expeditiously refund the same to the appellants. Appeal allowed.