RAJESH MALVIYA vs SIPANI AUTOMOBILES LIMITED

THIS is a complainant''s appeal against the order dated 20.12.1995 passed in Case No. 163/93 by the District Consumer Disputes Redressal Forum, Bhopal (for short the ''District Forum'').

THE District Forum has dismissed the complaint of the complainant for refund of the amount of Rs. 10,000/- deposited as booking amount on 26.6.1989 for delivery of Montana Diesel Car through the authorised dealer, the respondent No. 2 of the manufacturer, the respondent No. 1. Car was not delivered, therefore, the complainant cancelled the booking vide letter dated 11.11.1991. THE opposite party No. 1 sent a cheque of Rs. 12,100/- which was dishonoured by the Bank. THE complainant filed a complaint to claim amount with interest thereon at the rate of 18% per annum. THE District Forum held that as the cheque was bounced, the appropriate remedy for the complainant is to approach Civil Court and to prosecute the opposite party No. 1 for the offence of Section 138 of the Negotiable Instruments Act, 1881 (for short NI Act). Having heard learned Counsels for the parties we are of the opinion that the order of the District Forum cannot be sustained. This Commission in III (1998) CPJ 20, Gajendra Kumar Rathore v. Sipani Automobiles Limited & Ors., has taken a view that if the booking amount of the car booked, if the Company fails to deliver the car and the booking is cancelled and the amount was not refunded, it amounts to deficiency in service under Section 2(1)(g) of the Consumer Protection Act, 1986 (for short the ''Act''). .

The Delhi State Consumer Disputes Redressal Commission in case of Ram Prakash Gupta, Partner, M/s. Spices Sales Corporation v. M/s. Ram Dulari & Ors., I (1992) CPJ 286=1992 (1) CPR 487, in a case where cheque was bounced, has observed that the complainant who filed a complaint to claim the amount alleging deficiency in service of the dishonoured cheque issued by the opposite party for repayment is a consumer and the District Forum had jurisdiction to try the complaint.

RECENTLY, this Commission in Appeal No. 329/95 decided on 19.3.1999, Mrs. Gayatri Saxena v. M.L. Gour, in a case where criminal proceedings under Section 138 of the NI Act and the complaint was also filed under Section 12 of the Act, on an objection filed Order 7, Rule 11, CPC in view of the pendency of the complaint has observed in para 4 thus : "It is well settled that filing of civil suit and criminal proceedings are not alternate remedies available to the complainant. They create different type of rights in the complaint, who can legally proceed with both. The enforcement of the liability through a Civil Court will not disentitle the aggrieved person from prosecuting the offender for the offence punishable under Section 138 of the NI Act. The civil liability relates to recovery of the amount. The two liabilities are distinct in their scope. There is no legal prohibition if the two parallel proceedings are permitted to continue. If civil remedy is persuaded that does not mean that the criminal liability in the criminal law has come to an end or that if criminal prosecution is launched that does not mean that a person who has got a right to recover the amount. See, the decisions of Madhya Pradesh High Court in Cr. Misc. Case No. 663 of 1990 (J) decided on 1.7.1990, P. Janardan Rao v. State of MP., 1991 (I) MPWN154, and Criminal Misc. Case No. 2507 of 1993 (G) decided on 25.7.1994, Virendra Singh Rana v. Dinesh Cooking Gas Agency, 1994 (II) MPEN 267. The same is the view of Bombay High Court in Satish Kumar Premchand Jain v. Krishnagopal Mohanlal Sarda, 1994 Cr. L.J. 887."

In similar cases against Sipani Automobiles this Commission has taken the view that there was deficiency in service hence, directed for refund of the booking amount with interest.

IN view of the above, the appeal is allowed, the order of the District Forum is set aside as Demand Draft was in the name of Sipani Automobiles which was handed over to respondent No. 2 who transmitted it to Sipani Automobiles, therefore, we direct that Sipani Automobiles to make the payment of Rs. 10,000/- with interest at the rate of 7% p.a. from 26.6.1989 to 11.11.1991 and thereafter to pay interest on the amount of Rs. 10,000/- at the rate of 18% p.a. M/s. Sipani Automobiles shall also bear costs of litigation throughout which are quantified at Rs. 1,000/-. A copy of the order be conveyed to the parties and a copy of the order be sent to the District Forum alongwith the record of the case. Appeal allowed. ______________