MOTOR SALES And SERVICE vs RENJI SEBASTIAN

THIS appeal is against the order of the Consumer Disputes Redressal Forum, Kozhikode dt. 27.9.1990 on complaint No. 27 of 1990. The case of the Respondent/Complainant was that he booked a Hero Honda Motor Cycle after depositing Rs. 500/- through the appellant/opposite party in August 1985. On the basis of the booking the complainant was allotted priority No. 6350 in forum No. 1086646 dt. 29.8.1985. But he was not allotted the vehicle even after persons with priority Nos. after his, was favoured with allotment of Hero Honda Motor Cycles. So his prayer before the District Forum was that the opposite parties be directed to make available to him a Hero Honda Motor Cycle at the price prevailing when the vehicle was sold to priority Nos. Immediately before and after his and to pay interest on the deposit of Rs. 500/- from the date of deposit until the date of sale of the vehicle to him. The opposite party No. 1 in the complaint who is the appellant herein contended that they have not allotted to anybody a motor cycle overlooking the priority No. of the complainant and in fact they had sent a delivery intimation letter dt. 5.12.1989 asking the complainant to take delivery of the vehicle as and when the complainant''s priority number matured which he did not comply with and hence there was no question of any payment of interest or compensation. The complainant was examined as CW (1) before the District Forum and 4 exhibits Al to A4 were marked as documentary evidence. On the other hand the appellant/opposite party No. 1 filed their version along with a photostat copy of an extract from a register alleged to be their certificate of posting Register. In spite of intimations to the opposite parties for adducing evidence and also regarding the date for arguments and hearing, neither of them cared to do so or appear before the Forum either in person or through authorised representatives.

THE Forum in their order upheld the contentions of the complainant/Respondent and directed the opposite parties to deliver a new Hero Honda Motor Cycle to the complainant at the price that prevailed, when his priority was overlooked and vehicle was sold to another customer. THEy were also directed to adjust interest on the advance paid towards the price and to pay compensation of Rs. 500/- to the complainant. It is against the above order of the District Forum that the appellant has approached this Commission. The appellant''s contentions inter alia surprisingly enough include that they were not given sufficient opportunity to adduce evidence or argue the case before the Forum and so this appellate body might permit them to let in documentary and oral evidence. They have also filed a separate petition on 9.1.1991 praying for incorporating an additional ground in the memorandum of appeal that the District Forum passed their order from behind their back and without serving due notice regarding the date of hearing.

On the basis of the records received from the District Forum what we can conclude is that even prima facie these contentions do not hold water. The facts and evidences tell a different story. The appellant infact did not care to avail any of the opportunities offered by the Forum cither to adduce sufficient evidence if any to rebut the allegations made by the complainant/Respondent or argue their case before the Forum. In these circumstances we are rejecting the application of the appellant to adduce any additional evidence at this stage. The facts and records go to prove that the appellant did not allot the motor cycle to the Respondent/complainant on time i.e. when his turn came as per the priority number. At the same time they allotted vehicles to others who were ranked next only to the complainant. The appellant was evading the claim of the Respondent under some pretext or other. Hence we uphold the order of the District Forum that the opposite parties shall allot a new Hero Honda motorcycle to the Respondent at the price at which they sold the same to the persons with priority number next to his. The District Forum has not specified the rate of interest payable on the deposit. We direct that simple interest of @ 9% per annum shall be paid on the advance amount of Rs. 500/- from the "first day of the succeeding month in which the booking was made till the last day of the month in which the delivery intimation was legitimately due to the Respondent as per his priority number" as provided in the "terms and Conditions" of Hero Honda Ltd. appearing in the reverse of Exhibit A(1) marked by the District Forum and a penal interest of 12% till the date on which the actual allotment is made to the Respondent. The interest due and the deposit shall be adjusted to the price payable by the Respondent. The compensation of Rs. 500/- ordered by the District Forum is only just and reasonable considering the unjustifiable delay in delivery of the vehicle and consequential losses and mental tension to the Respondent. And so we do not intend to amend that part of the order and it stands.

THE first respondent in the written submissions dt. 20.12.1990, filed before this Commission, has averred that he has been allotted a new Hero Honda vehicle by the appellant which he has taken delivery of from their Kottayam branch on 12.12.1990 after paying Rs. 21062.50p the price fixed by the Respondent and that the acceptance of the vehicle at the above price was without prejudice to his contentions and rights in the complaint No. 27 of 1990 with the District Forum, Kozhikode. Since the Respondent in his written submission has averred that a Hero Honda vehicle has been delivered to him on 12.12.1990 by the appellantat at the price of 21062.50p this Commission has to be satisfied by the appellant that the price collected is the ruling price on the date on which the Respondent should have legitimately been allotted the vehicle on the basis of his priority number. We direct the appellant to file an affidavit before this Commission specifying that price within 15 days from the date of receipt of this order and the total excess amount if any collected over and above the actual price after adjusting the advance amount and interest calculated on the basis of our order be refunded to the Respondent.

FURTHER the District Forum in their order para (7) has directed the opposite parties 1 and 2 in the original complaint to deliver a new Hero Honda motor cycle to the complainant though in para (6) of the order they have found that the second opposite party was an unnecessary party to these proceedings. Evidently this is a mistake to be corrected. The liability to deliver the motorcycle rests with the opposite parties 1 and 3 only. Hence we are correcting that mistake and absolving opposite party No. 2 in the original complaint from any liability in this case. And we order that the liability to deliver a new Hero Honda motorcycle to the Respondent rest with the opposite parties 1 and 3 of the original complaint only. In the result the appeal stands disallowed and the order of the District Forum is upheld subject to the above modifications. There will be no order as to costs. Appeal dismissed.