State Consumer Disputes Redressal Commission
Partho Bhahacharys vs Rajhuuanshi Enterprises (P). Ltd. & ... on 16 March, 2023
FA NO./765/2013 D.O.D. 16.03.2023
MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 08.07.2013
Date of hearing: 19.12.2022
Date of Decision: 16.03.2023
FIRST APPEAL NO.- 765/2013
IN THE MATTER OF
MR. PARTHO BHATTACHARYA,
S/O LATE MR. G.P. BHATTACHARYA,
RESIDENT OF FLAT NO. 204,
SECTOR-17G, VASUNDHARA,
GHAZIABAD.
(Through: Mr. Anil Panwar, Advocate)
...Appellant
VERSUS
1. M/S RAGHUVANSHI ENTERPRISES PVT. LTD.,
19-A, MAIN G.T. ROAD,
DILSHAD GARDEN, DELHI-110092.
(Through: Mr. Deepak Joshi, Advocate)
2. M/S. SRINATHJI MOTORS PVT. LTD.,
21, VEER SAVARKAR BLOCK,
VIKAS MARG, SHAKARPUR,
DELHI-110092.
(proceeded ex-parte.)
3. M/S. KALWANT MOTORS,
MS IV, INDUSTRIAL AREA, OPP. BEL,
SHAHIBABAD, U.P-201010.
DISMISSED PAGE 1 OF 18
FA NO./765/2013 D.O.D. 16.03.2023
MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS
4. M/S. GANGOTRI AUTOMOBILES,
DELHI ROAD, NH-58,
JAWALAPUR, HARIDWAR,
UTTARANCHAL-249407.
(Respondent No.3 & 4 deleted from the array of the parties)
5. M/S. HIM MOTORS PVT. LTD.,
338, FIE PATPARGANJ INDUSTRIAL AREA,
DELHI-110092.
6. M/S. TATA MOTORS LTD.,
PASSENGER CAR BUSINESS UNIT,
UNIT NO.305, IIIRD FLOOR,
TOWER-B, SIGNATURE TOWERS,
SOUTH CITY-1, NH-8,
GURGAON.
(Through: Mr. Ashok Kumar Mishra, Advocate)
...Respondents
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. P. Bhattacharya, counsel for Appellant.
Mr. Deepak Joshi, counsel for Respondent No.1.
None for Respondent No.2 was proceeded ex-parte vide
order dated 21.03.2016.
Respondent No.3 and Respondent No.4 were deleted
from the array of the parties vide order dated 05.10.2015.
DISMISSED PAGE 2 OF 18
FA NO./765/2013 D.O.D. 16.03.2023
MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are:
"This complaint has been filed with the allegation that the complainant has purchased a Tata Indigo (XL grand) on 23.10.07 for a sum of Rs.7,37,947/- from OP2. On taking delivery it was found that the side mouldings of the car were broken, LCD & horns were not working properly and hydraulic Antenna is also not operating smoothly. The complainant wanted to change the vehicle due to the aforesaid reason and assurance was given by OP2 that these minor problems would be sorted out on the very next day. On the assurance of OP2 complainant accepted the car, but these problems were not sorted out as promised. He took the car to OP1 where the side mouldings and horn of the car were changed. But they did not rectify the hydraulic antenna problem and the LCD. They asked him to come after a fortnight as the spares are not available. The complainant returned the aforesaid car to OP2 and on 07.11.07 the vehicle was delivered to him without rectifying the problem of LCD and antenna. On 24.11.07 rear seat glass window was broken. The was sent to OP3, but the glass was not replaced and the care remained there for 19 days. Complainant has to hire vehicle No.HR 32B-7102 for daily use from Naman Tour & Travels for the aforesaid 19 days and spent a Rs.34740/-. Without bringing to the notice of the complainant on 13.12.07, OP3 carried out some major problems. The OP6 was asked for providing the first service. Within three months the vehicle required the major repairing and it proves manufacturing defect in the vehicle. The defects in the car was concealed by OP3 and OP6 which amounts to unfair trade practice. On 07.03.08 the vehicle was taken to the workshop of OP2 as the black smoke was coming from the engine. He was asked to leave the car for thorough check-up and rectification of the complaint. An SMS was received on 24.3.08 that the car is ready, when he went to take the delivery he was told that new major problem has been diagnosed. The car was delivered on 3.4.08. He was told that almost all the parts of the engine have been changed. It was DISMISSED PAGE 3 OF 18 FA NO./765/2013 D.O.D. 16.03.2023 MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS noticed that the fog lamps are not working, A/C get switched off and on automatically, the fuse box was changed. On 15.6.08 when he was going to Haridwar the vehicle break down, regional head Mr. R.K. Saxena was informed. The vehicle was taken to Gangotri Automobiles. The complainant has to cut short his visit. The vehicle was taken to OP2 workshop, but the problems were not rectified. A complaint was filed with the CDRF (Ghaziabad) No.161/08 the vehicle was taken on 01.08.08 to M/s Him Motors. A compromise was arrived at providing the extended warranty free of cost and the complaint was withdrawn. The complainant has alleged problem of low average, mal-functioning, defective engine, defective control panel etc. The complainant has prayed for the replacement of the car, direction for payment of Rs.1,17,130/- the amount spent for hiring the car and Rs.50,000/- for mental pain and agony and Rs.33000/- towards litigation cost.
2. The District Commission after taking into consideration the material available on record passed the order dated 29.05.2013, whereby it held as under:
"As per allegation made in the complaint, this vehicle was purchased on 23.10.07 and on the very same day the side moulding, LCD and horn coupled with hydraulic antenna were found to be defective. The complainant has alleged that LCD and hydraulic antenna could not be repaired or replaced despite repeated visit to the workshop of OP2. There are serious allegation of defect in the engine and manufacturing defect. The burden heavenly lies upon the complainant to prove that on the date of the delivery the side moulding, hydraulic antenna, horn etc were defective. The complainant has filed on record the history of the vehicle in question and on the basis of service history he has stressed that the vehicle was defective right from the very beginning.
This has been pointed out by the Ld. Counsel for the OP that the complainant himself has entered into compromise with Tata Motors on 29.08.08. The photocopy of the compromise deed which has been attested on 14.08.08 and has been signed by the complainant on 20.08.08 bears the signature of the authorized representative of Him Motors and it does not bear the signature of representative of Tata Motors. A satisfactory note which is DISMISSED PAGE 4 OF 18 FA NO./765/2013 D.O.D. 16.03.2023 MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS Annexure-2 to the submission filed by OP6 executed by the complainant on 10.11.10. If looked into, it leaves no room for doubt that the complainant has no claim whatsoever against any of the OPS with regard to the vehicle in question. A perusalof this satisfaction note will show that the complainant has himself mentioned that he has agreed for a lump sum amount of Rs.3,50,000/- for arriving at a permanent solution and amicably settling the long pending dispute subject to withdrawal of his complaint before Distt. Forum at Ghaziabad and on receipt of the said amount of Rs.3,50,000/- he shall not have any claim, grievances whatsoever against Srinath Motors and Tata Motors and would not raise any objection with regard to the same in future. This fact has been evidence by the copy of the cheque of Rs.3,50,000/- which has been received by the complainant on 10.11.10. This has not been denied by the complainant that he has not executed this note. Tata Motors is not a signatory to the compromise deed alleged to have been attested by notary public on 14.08.08. This cannot be taken into consideration by the simple fact that below the signature of Mr. Bhattacharya the date noted is 20.08.08. This itself is sufficient to discard this document and it is attested on 14.08.08 since the complainant has himself given up all his right with regard to vehicle in question on 10.11.10, the burden is heavy upon the complainant to prove that after the deed was executed on 10.11.10, the warranty was extended for another two years. Paper No.8 filed along with affidavit of Mr. Bhattacharya shows that coverage period was from 30.4.09 to 22.10.11 and it was subject to the terms and conditions of the warranty. There is no document on record that after the compromise before the court at Ghaziabad any new warranty was issued by Tata Motors. The Paper No.8 does not bear the signatures or the authority of any of the responsible officer from Tata Motors. The document exhibited on 10.11.10 clearly debar the complainant from raising any issue with regard to the car in question as against Srinath Motors and Tata Motors. In the present complaint the main relief which has been claimed is as against the OP2 and OP6, the Srinath Motors and Tata Motors which in the above circumstances cannot be claimed by the complainant. He is estopped by virtue of document which he has executed on 10.11.10. The complainant cannot use these institutions for his own benefit and enrichment, he has already drawn the benefit of receiving the amount of Rs.3,50,000/- from DISMISSED PAGE 5 OF 18 FA NO./765/2013 D.O.D. 16.03.2023 MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS Tata Motors and have given undertaking to Tata Motors for selling the vehicle in question. His persistent using the same vehicle which is giving him problem right from the very beginning as alleged by him suggest nothing but his intention to get the amount by one way or the other from Tata Motors or their dealers by making allegation which are not substantiated by evidence. We do not find any merit in this complaint and it deserves dismissal.
The complaint is dismissed accordingly. Copy of this order be sent to both the parties as per rule."
3. Aggrieved by the aforesaid order of the District Commission, the Appellant has preferred the present Appeal contending that the District Commission has erred in dismissing the Complaint as there arises a different cause of action this time. The Appellant has further challenged the impugned order on procedural irregularities contending that proceedings stand vitiated as certain documents were admitted without setting aside the ex-parte order.
4. The Respondent No.6 on the other hand, has filed the reply to the present appeal and has contended that the Appellant had already received the value of the vehicle in question and further in view of the satisfaction note dated 10.11.2010, no legal issue survives as such, the appeal is frivolous in nature aimed at extorting money out of the Respondent.
5. We have perused the material available on record and heard the counsel for the parties.
6. The first issue before us is that whether the District Commission transgressed its powers in allowing procedural irregularities.
7. The Appellant has contended that the District Commission erred in not setting aside the ex-parte order against Respondent No.6 and has proceeded to accept the evidence from Respondent No.6.
DISMISSED PAGE 6 OF 18 FA NO./765/2013 D.O.D. 16.03.2023
MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS
8. At the outset, we deem it appropriate to refer to Malay Kumar Ganguly v/s Dr Sukumar Mukherjee & Ors [III (2009) CPJ 17 (SC), wherein the Hon'ble Supreme Court observed "Section 22 of the Consumer Protection Act, 1986 provides that Sections 12, 13 and 14 thereof and the rules made thereunder for disposal of the complaints by the District Forum, shall with such modification as may be considered necessary by the Commission, be applicable to the disposal of disputes by the National Commission. Section 12 of the 1986 Act provides for the manner in which the complaint shall be made. Section 13 prescribes the procedure on admission of the complaint. Sub-section (3) thereof reads:-
"(3) No proceedings complying with the procedure laid down in sub-
sections (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with."
Apart from the procedures laid down in Section 12 and 13 as also the Rules made under the Act, the Commission is not bound by any other prescribed procedure. The provisions of the Indian Evidence Act are not applicable. The Commission is merely to comply with the principles of natural justice, save and except the ones laid down under sub-section (4) of Section 13 of the 1986 Act. The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the Civil Court but yet it can not be called a civil court."
9. The Apex Court observed that even though the proceedings under the Consumer Protection Act are judicial proceedings, they are not civil courts. Hence, disputes have to be tried in a summary manner, following the principles of natural justice, and the provisions of the Indian Evidence Act are not applicable to the consumer fora. Unnecessary technicalities deter and the speedy redressal of grievances individual consumer, thereby frustrating the objective of Consumer Protection Act. Consumer Commission should follow a simple procedure, merely observing the principles of natural justice, devoid of all technicalities.
DISMISSED PAGE 7 OF 18 FA NO./765/2013 D.O.D. 16.03.2023
MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS
10. We now deem it appropriate to refer decision in S P Aggarwal v/s The Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow (FA No. 478 of 2005 decided on March 31, 2010), wherein the National Commission observed:
"The State Commission has erroneously discarded the affidavit of the complainant on a mere technical ground that the said affidavit was not in conformity with the provisions of Order XIX CPC, which could not be strictly applied to the proceedings under the provisions of Consumer Protection Act, 1986. We see merit in this contention because the proceedings under the Consumer Protection Act are required to be dealt with in a summary manner and, therefore, the provisions of the Code of Civil Procedure, except and so far as they have been specifically applied in relation to these proceedings, will have no application. The State Commission has taken a hyper- technical view in rejecting the said affidavit on the ground that it has not been prepared and filed in accordance with the provisions of the Code of Civil Procedure and the 13 annexures filed along with the affidavit are not dealt with in detail in the said affidavit."
11. In the aforementioned decision, the Hon'ble National Commission was required to decide whether the proceedings under the Consumer Protection Act required a detailed affidavit to be filed in accordance with the provisions of the Civil Procedure Code (CPC), or a short affidavit would suffice. Complainant had filed a complaint before the UP State Commission alleging medical negligence. The State Commission dismissed the complaint because the affidavit filed by the complainant was very short and not in accordance with the provisions contained of Order XIX of the CPC. In appeal, the National Commission observed DISMISSED PAGE 8 OF 18 FA NO./765/2013 D.O.D. 16.03.2023 MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS that the provisions of Order XIX of the CPC cannot be strictly applied to the proceedings before the consumer fora. It held that the State Commission had taken a hyper-technical view in rejecting the affidavit as it had not been prepared in accordance with the provisions of the CPC and the annexures filed along with the affidavit had not been not dealt with in detail as required under the CPC. The National Commission held that the affidavit and the documents filed by the complainant were entitled to due consideration on the basis of the intrinsic value of the documents filed. After considering the evidence, the National Commission held that the complainant had established medical negligence and for this he was awarded a compensation of Rs 1 lakh.
12. In Consumer Education & Research Society & Anr v/s New India Assurance Co Ltd & Ors [I (2008) CPJ 317 (NC), the Hon'ble National Commission observed:
"Unfortunately, in the present case, an over-technical view has been taken by the State Commission and the District Forum in dismissing the complaint by holding that father/mother of an aggrieved person or his Power of Attorney is not entitled to file complaint under the Consumer Protection Act, 1986 This is erroneous. It is to be reiterated that under the Act, technicalities are not to be encouraged because the only procedure, which is prescribed under the Act is to follow the principles of natural justice and to decide the matter after hearing both the parties.
Repeatedly it has been observed that complaint alleging defects in goods or deficiency in service can be entertained on receipt of a letter stating sufficient facts and the cause of action. If required, it can be entertained after recording statement of the Complainant and if grounds are made out, notice is required to be issued to Opposite Party.
DISMISSED PAGE 9 OF 18 FA NO./765/2013 D.O.D. 16.03.2023
MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS This is forgotten and we still erroneously try to adhere to the procedure prescribed under the C.P.C. or elsewhere"
13. In the aforementioned dicta, the Hon'ble National Commission held that an over-technical view should not be taken by the fora. A consumer complaint can even be filed by the parent of an aggrieved person or his Power of Attorney holder. A complaint alleging defect in goods or deficiency in service can be entertained on receipt of a letter stating sufficient facts and the cause of action. Technicalities are not to be encouraged because the only procedure prescribed under the Act is to follow the principles of natural justice and to decide the matter after hearing both the parties. The Hon'ble National Commission ruled that unfortunately this aspect has been forgotten and some fora still erroneously try to adhere to the procedure prescribed under the CPC or elsewhere.
14. It is to be noted as is clear Malay Kumar Ganguly (supra) the provisions of the Indian Evidence Act are not applicable to the Consumer Commission. We opine that Consumer Commission must eschew technicalities. The avowed objective of the Consumer Protection Act is to afford speedy and affordable justice to consumers, shorn of technicalities. It is because of this reason that the Act does not provide any formats for complaints or applications. The Hon'ble Supreme Court has observed time and again that technicalities require to be eschewed by the Consumer Commission and the National Commission has observed that even a letter can be treated as a complaint. Moreover, Evidence act is not applicable to the consumer Commission. There is no need to file a detailed affidavit; even a short affidavit would suffice. Unfortunately, over the years, the consumer fora are losing sight of the intent and purpose of the Act and are often becoming hyper-technical.
DISMISSED PAGE 10 OF 18 FA NO./765/2013 D.O.D. 16.03.2023
MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS
15. Hereafter, we deem it appropriate to refer to Sub-section (4) of Section 13 of the Consumer Protection Act, 1986 invests the District Forum with certain powers vested in a civil Court under the Code of Civil Procedure. It reads as follows:
"(4). For purposes of this section, the District Forum shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely:--
(i) the summoning and enforcing attendance of any defendant or witness and examining the witness on oath;
(ii) the discovery and production of any document or other material object producible as evidence;
(iii) the reception of evidence on affidavits;
(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source
(v) issuing of any commission for the examination of any witness; and
(vi) any other matter which may be prescribed."
16. On an analysis of the above statutory provision, it is clear that Clause (vi) of Sub-Section 4 of Section 13 of the Consumer Protection Act, 1986 broadens the ambit of inherent powers that the Commission may exercise, akin to that of vested in a Civil Court.
17. We also deem it necessary to refer to N.S Kumar, Proprietor v. Smt. Bincy & Anr., Kerala High Court reported as 2009 SCC OnLine Ker 235 :
"10. We have already indicated above that the Code of Civil Procedure has been applied to the proceedings under the Consumer Protection Act only to a limited extent. If the intention of the legislature was to apply the provisions of O. 9 also to the proceedings under the Consumer Protection Act, it would have clearly provided in DISMISSED PAGE 11 OF 18 FA NO./765/2013 D.O.D. 16.03.2023 MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS that Act the provisions of O. 9 will also be applicable to the proceedings before the District Forum or the State Commission or, for that matter, before the National Commission. If the legislature itself did not apply the rule of prohibition contained in O. 9. R. 9(1). it will be difficult for the Courts td extend that provision to the proceedings under the Act."
"6. In the decision reported in Indian Bank v. District Consumer Disputes Redressal Forum (supra), the Madras High Court considered the case where the parties were declared ex parte, but no decision on merits was taken. Similar was the case of the Kerala High Court referred to by the appellant. The case was not decided on merits, but the Forum only declared the opposite party ex parte. It is stated that District Forum has got the power to dismiss the complaint for default and it has got inherent power to restore the complaint. Similarly, a decision declaring ex parte also can be set aside by using the inherent power as there is no decision on merit. In the course of discussion, the meaning of „ex parte‟ was discussed. Declaring a case „ex parte‟ would not mean that he would not be allowed to be heard in future proceedings, if any. But the ex parte decision is taken as if such person is present. Once the decision is taken, it could be challenged by the person aggrieved, in appeal. If no decision is taken, but the case is adjourned, in the next hearing he can appear, notwithstanding the fact that previous proceedings was decided ex parte.
"3. 3. The meaning of the expression, „ex parte‟ has been considered by the Supreme Court in Sangram Singh v. 1. Election Tribunal, Kotah (AIR 1955 SC 425 at 431). Referring to a judgment of Wallace, J., in Venkatasubbiah v. Lakshminarasimham (AIR 1925 Mad 1274), the Apex Court opined that „ex parte‟ only means in the absence of other party. The declaration of ex parte made by the Forum on 16-4- 1999 and subsequent date, are only adjournments of the case ex parte and not ex parte decisions or orders. But power is given to the Forum under. R. 4(8) to decide the matter ex parte. This Court considered the power of the Industrial Tribunal to declare ex parte under R. 22 of the Industrial Tribunal Rules similar to R. 4(8) of the Rules under DISMISSED PAGE 12 OF 18 FA NO./765/2013 D.O.D. 16.03.2023 MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS consideration in Fact Employees Association v. Fact Ltd. (1976. KLT
474), Justice Kochu Thommen as he then was, observed as follows:
The Tribunal may imagine that the absentee is present, and having done so, it may give full effect to its imagination and carry it to its logical conclusion. The Tribunal has, to bear in mind the purposes for which the fiction is created and has to give effect to them. Obviously, the intention of R. 22 is to enable the Tribunal to imagine that a person is present, although he is in fact absent; and to further imagine that, although present, he is unwilling to adduce evidence or argue his case. The Tribunal then has of necessity to pass an award on the basis of the evidence placed before it by the party that in fact participated in the proceedings. This is the object of the fiction expressed by the words "as if he had duly attended".
If an ex parte decision is taken, the opposite party can only file an appeal. In the present case no ex parte decision is taken. Therefore, in subsequent postings opposite party is free to attend and continue with the proceedings............"
The operative portion of the above decision reads as follows:
"........In any event, in this matter, since no ex parte decision is taken, I am of the opinion that the petitioner will be free to attend the case on subsequent dates of hearing. Therefore, no further orders are necessary in this Original Petition. Petitioner is free to attend the proceedings, cross-examine the witness, adduce evidence of his defence, etc. in the subsequent posting "7. In the cases decided by the Madras High Court and the Kerala High Court, which were relied upon by the appellant, no decision was taken ex parte, but the parties were declared ex parte. Rule 4(8) gives the power to the Forum to settle the case ex parte on the basis of evidence even if the opposite party is absent on the date of settling the case. In St. Joseph's Hospital case (AIR 2001 Ker 316) (supra), at paragraphs 2 and 3 it was held as follows
8. In the Madras High Court decision, there is no ex parte decision on merit. When : a complaint is dismissed for default or the Forum DISMISSED PAGE 13 OF 18 FA NO./765/2013 D.O.D. 16.03.2023 MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS merely declares a party ex parte, there is no decision on merit and therefore, those decisions can be set aside by using inherent powers. Further, as already explained, as noted in the St. Joseph's Hospital case (AIR 2001 Ker 316), if the Tribunal declared the parties as ex parte, in future proceedings, without setting aside the ex parte order, they can participate. Only a decision can be taken ex parte. But in this case, a decision on merits was taken ex parte and therefore, if a decision on merit is taken, the remedy of the appellant is to file an appeal before the State Commission. Here, though ex parte (as the other decisions), a decision was taken on merits after considering the evidence on record. Section 15 of the Act provides for an appeal, which is an efficacious remedy, against such order."
18. On a perusal of the aforesaid statutory position it is clear that the Respondent was afforded an opportunity of being heard and as such reliance on a document which ought to have been produced by the Appellant cannot be construed as a procedural infirmity. Since the Appellant was a signatory to the said note, it was the Appellant's responsibility to place the said note on record, which he failed at. Therefore, the question that the Appellant was surprised by the production of the said document does not arise at all.
19. The second question for consideration before us is whether the right of the Appellant to seek remedy subsists in the light of full and final settlement arrived at dated 10.11.2010.
20. In the present matter, it is the case of the Appellant that the Complaint bearing number 514/2011 filed before the District Commission arises out of a different cause of action. The cause of action in the earlier complaint bearing number 161/2008 filed before the District Commission was in respect of the recurrent defects arising in the car whereas the cause of action in the complaint number 514/2011 pertains to the issue of extended warranty during which the Respondent failed to provide its DISMISSED PAGE 14 OF 18 FA NO./765/2013 D.O.D. 16.03.2023 MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS services to the Appellant. The Appellant has contended that since the Respondent extended the warranty in the settlement claim, any problem arising during the warranty period is to be made good by the Respondent, and as such complaint number 514/2011 is on a fresh cause of action.
21. It is pertinent to refer to the satisfaction note dated 10.11.2010 as agreed to by the Appellant which is reproduced here under-
22. On a bare perusal of the satisfaction note, it is absolutely clear that the Respondent proposed the 2 years extended warranty to the Appellant vide the Compromise Deed dated 14.7.2008 on the condition of withdrawing the proceedings. The satisfaction note clearly divulges that in lieu of the aforesaid warranty and refund of taxi charges and AMC, the Appellant was required to withdraw the complaint before the District Commission DISMISSED PAGE 15 OF 18 FA NO./765/2013 D.O.D. 16.03.2023 MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS which he didn't do. Thereafter, deliberations were held between the Appellant and the Respondent, and after persistent requests by the Appellant to assist him for an arrangement for resale of the car, the Respondent agreed to pay a lump-sum amount of Rs 3,50,000 towards the full and final settlement of the dispute. The satisfaction note clearly divulges that the Appellant had made a statement that after the receipt of the said amount, he shall not raise any claim/grievance whatsoever, as alleged in the complaint no. 161/2008 against Respondent No.2- Shrinathji Motors and Respondent No.6-Tata Motors. It is to be noted that as per the established convictions of contract law, the first offer from the Respondent lapsed as soon as the conditions requisite i.e. withdrawal of the complaint, was not met by the Appellant. It is to be further noted that once the offer lapsed, no communication as such to its revival was ever communicated to the Appellant. It was only subsequent to the first offer of extended 2 years warranty that the Respondent offered the Appellant another offer of Rs 3,50,000 for full and final settlement of the disputes. It is to be noted that this time the offer was duly accepted by the Appellant and thereby withdrew the complaint. The Appellant has contended that nowhere it is stated in the documents on record that the warranty determined on the execution of the note dated 10.11.2010. We are of the opinion that the warranty determined the very moment the Appellant accepted the second offer of Rs 3,50,000 towards full and final settlement of his claims. We are of the view that satisfaction note specifically divulges the assertion :
"I confirm that after receipt of the above amount of rs 3,50,000 I do not have any claim/ grievances whatsoever as alleged in the Complaint No.161/2008 agains Shrinathji DISMISSED PAGE 16 OF 18 FA NO./765/2013 D.O.D. 16.03.2023 MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS Motors and Tata Motors Ltd and that I would not raise any objection with regard to the same, in future".
It is to be noted that the subject matter of the complaint number 161/2008 is the same vehicle in respect of which the complaint number 514/2011 was filed before the District Commission. The plea that the vehicle broke down for a different reason this time cannot be a ground for filing a fresh complaint. In essence, the subject matter of both the complaints are pari materia in so far so the vehicle is the same and the allegation is as to defects, whether previous or new. It is an established position of law that once a sum is received in terms of full and final settlement of the claim, no right to seek a fresh claim in respect of the same subject matter can be allowed.
23. Since the assumption as to the determination of warranty is just a misconstrued reading of the satisfaction note and no warranty flows from the satisfaction note, we are of the view that there exists no cause of action and the District Commission rightly estopped the Appellant herein from acting contrary to his submission.
24. Therefore, we do not find any reasons to reverse the findings of the District Commission and uphold the order dated 29.05.2013, passed by the District Consumer Disputes Redressal Forum (East), Convenient Shopping Centre, Saini Enclave - 110092. Consequently, the present appeal stands dismissed.
25. Application(s) pending, if any, stand disposed of in terms of the aforesaid Judgment.
26. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be DISMISSED PAGE 17 OF 18 FA NO./765/2013 D.O.D. 16.03.2023 MR. PARTHO BHATTACHARYA VS M/S RAGHUVANSHI ENTERPRISES PVT LTD & ORS uploaded forthwith on the website of the Commission for the perusal of the parties.
27. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
16.03.2023 DISMISSED PAGE 18 OF 18