V.K. AGARWAL vs SWAMI NATH NIGAM & ANR.

This revision is directed against the order of the U.P. State Consumer Disputes Redressal Commission, Lucknow dated 10.5.2012 in first appeal No.2867 of 2002 whereby the State Commission while agreeing with the finding of fact returned by the District Forum partly accepted the appeal and modified the order of the District Forum so far as the relief awarded is concerned.

Briefly stated facts relevant for the disposal of the revision petition are that respondent No.1/complainant filed a consumer complaint against the petitioner and M/s B.P. Aggarwal &

Sons Ltd., opposite party No.2, alleging that the complainant booked an Ambassador car manufactured by Hindustan Automobiles with the petitioner opposite party No.1 on 26 October, th 1998 by making payment of consideration amount of Rs.3,80,481/- against invoice No.2130 dated 9 October, 1998. It is alleged that car, however, was delivered to the complainant through th opposite party No.2 M/s B.P. Aggarwal & Sons Ltd. on 2 December, 1998. According to the nd complainant the car supplied to him was a used car and it developed various defects. When the complainant visited the petitioner for service of the car the petitioner told him that he was not the authorised dealer. As the faults in the car vehicle were not rectified the complainant got it inspected from one Foreman of U.P. State Roadways and as per his report the car was defective. Thus, feeling aggrieved by the above conduct of the opposite party, respondent No.1/complainant raised a consumer dispute in District Forum, Kanpur.

Opposite party No.1 in its written statement denied the allegations made in the complaint. It was pleaded that the complainant booked the car with opposite party No.1 in October, 1998 by making payment of Rs.3,80,481/. Unfortunately, dealership of opposite party No.1 was cancelled by the manufacturer company M/s Hindustan Automobiles in November, 1998, therefore, opposite party No.1 fulfilled its obligation by arranging for delivery of car to the complainant through the authorised dealer of the company M/s B.P. Aggarwal & Sons Ltd., Dhanbad. It was pleaded that actually the complainant vide job card dated 7 December, 1998 got some th additional accessories fitted in the car and the bill of the same was handed over to the driver of the complainant. The complainant instead of making payment of the said bill filed a false complaint. Opposite party No.2 also contested the consumer complaint.

The District Forum on consideration of pleadings of the parties and the evidence allowed the complaint and directed opposite parties to refund full price of the vehicle to the complainant with 12% interest thereon from the date of sale and take back the vehicle.

Being aggrieved of the order of the District Forum, the petitioner preferred an appeal and the State Commission vide impugned order partly accepted the appeal and modified the order of the District Forum as under: - "The present appeal is allowed partly and the order of the District Forum Kanpur City in complaint No.712/1999 dated 1.7.2002 is being modified by directing the O.P. 1 & 2 that they pay within 2 months of this order a sum of Rs.2,00,000/- alongwtih 12% interest from the date of sale. From the aforesaid amount the amount of Rs.8675/- payable to O.P. No.1 shall be adjusted.

The O.P. 1 & 2 shall pay to the complainant R.25,000/- as litigation cost. "

On perusal of the impugned order, we find that State Commission has held the petitioner opposite party no.1 deficient in service on three counts, namely, the petitioner delivered the used car to the complainant, the delivery was given after a considerable delay despite of the fact that full consideration amount was received by the petitioner on 27.10.1998 and that the car was defective.

As regards the issue regarding the late delivery of the car, learned counsel for the petitioner / opposite party no.1 has drawn our attention to the pleadings as also the copies of the Customer Order Form, Despatch Challan-cum- Invoice issued by M/s Hindustan Motors Limited as also the sale certificate in Form 21 issued in favour of the complainant. On perusal of the above documents, it is clear that the complainant had placed the order for purchase of ambassador car vide order form dated 27.10.1998. As per Discharge Challan cum Invoice, M/s Hindustan Motors despatched the car to the authorised dealer M/s B.P.Aggarwal & Sons Limited ( OP No.2) on 26.11.1998 and the car was admittedly delivered to the complainant on 27.11.1998 as it is apparent from the Sale Certificate on Form 21. Thus, it is clear that there had been no unnecessary delay in supply of car to the complainant. Thus, the order of the State Commission on the aforesaid count is against the record and not sustainable.

The second point on which the petitioner has been held deficient in service is that complainant was supplied a used car. On perusal of record, we do not find any cogent evidence to support this plea. If at all opposite parties had supplied a second hand used car to the complainant, there had to be an endorsement regarding the change of name of registered owner in the Registration certificate. The registration certificate containing entry pertaining to transfer of ownership has not been shown. Therefore, the plea pertaining to delivery of used car is not acceptable.

The last issue which needs consideration is whether the car supplied to the complainant was defective. In this regard, only evidence produced by the complainant is the certificate issued by the foreman of U P State Roadways, who in our view, cannot be termed as an expert, competent to give opinion about the condition of the car. Otherwise also, the said foreman allegedly examined the car after it was used for almost seven months. Therefore, his certificate is of no avail to the complainant. It may be pointed out that State Commission has taken a view that there was no manufacturing defect in the disputed vehicle. Thus, on this count also, the opposite parties cannot be faulted.

In view of the discussion above, it is clear that State Commission has passed the impugned order in utter disregard of the evidence on record and as such, the impugned order cannot be sustained. Therefore, we allow the revision petition, set aside the impugned order and dismiss the complaint.