National Consumer Disputes Redressal
The Blue Dart Express Limited vs Stephen Livera on 14 December, 2001
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.
393 OF 1997
(From the order
dated 4.2.1997 in
F.A.NO.1014/96
of the State
Commission, Andhra Pradesh)
The Blue Dart
Express Limited . .. Petitioner
Vs.
Stephen Livera
.. Respondent
BEFORE:
HONBLE MR. JUSTICE D.P. WADHWA,
PRESIDENT
HONBLE MR. JUSTICE J.K. MEHRA,
MEMBER.
MRS. RAJYALAKSHMI RAO, MEMBER.
MR. B.K. TAIMNI, MEMBER
(i) Contract standard form - small and fine-
print - clause limiting liability -
attention of sender not drawn - not valid
(ii) Courier service - delivery of document to
peon if authorised to receive the same
or not.
For the Petitioner : Mr. R. Jawaharlal, Advocate
For the Respondent : Mr. Ajay Bhall, Mr. Tarun Sharma and
Mr. Vipin Sharma, Advocates.
ORDER
Dated the 14th December, 2001 PER JUSTICE D.P. WADHWA (PRESIDENT) Petitioner runs a courier service. Petitioner is aggrieved by the order of the Andhra Pradesh State Consumer Disputes Redressal Commission dismissing the appeal of the petitioner and in turn upholding the order of the District Forum. Respondent as a complainant filed a complaint before the District Forum, Hyderabad, complaining non delivery of a letter by the petitioner-opposite party which was to be delivered to the addressee at Bangalore. Allowing the complaint District Forum awarded Rs.20,000/- as compensation to the complainant and also cost quantified at Rs.1,000/-.
Ms. Cephy Livera, minor daughter of the complainant was to appear for entrance test of Karnataka University for admission to a medical college. She on 29.4.94 sent her application through the petitioner addressed to her relative Mr. Dephan Phinheira, Department of Chemistry, Christ College, Bangalore. She paid Rs.100/- as courier charges. There was a covering letter which contained instructions to Phinheira to submit the application to the appropriate authority, last date of which was a 4.5.1994. Petitioner did not deliver the letter to the addressee Phinheira but gave it to one Rajan on 30.4.94 stated to be working with Phinheira. Complainant was informed accordingly by the petitioner. Thereafter complainant came to know that the letter did not reach Phinheira.
Complainant did not receive her hall ticket for her to appear in the entrance test and on 12.5.94 she rushed to Bangalore to ascertain the position. She came to know that the application had not been filed on time and that her letter had not been delivered to Phienheira. Result was that the complainant could not appear in the entrance test which was held on 17th and 18th May, 1994. She represented to the petitioner who informed her that the letter had been delivered to Rajan, a peon in the office of the addressee.
It transpired that Rajan went on leave and by the time he returned, the date had already expired. Alleging deficiency in service, complainant approached the District Forum. She claimed refund of Rs.100/- paid as courier charges; Rs.1500/- as expenses for going to Bangalore for making enquiry; and Rs.50,000/- as compensation. District Forum allowed the complaint and awarded Rs.20,000/- as compensation to the complainant with costs of Rs.1,000/-. Appeal against this order was filed by the petitioner-opposite party which was dismissed and the order of the District was affirmed.
The document which is the basis of the contract between the parties is in extremely small and fine print. Complaint was filed through the father of the complainant as the complainant was minor at the time she engaged the services of the petitioner-opposite party.
District forum has recorded a finding that in the written version petitioner did not stated that the complainant or her father had signed the courier receipt and accepted the terms and conditions printed on its back.
District Forum observed that there was some sort of signatures at the place for senders signatures on the receipt but it did not look like a signature or initial of sender or her representative. It was, therefore, held that when the courier receipt did not clearly show that the sender or her representative had signed thereon and accepted the terms and conditions printed on its face or overleaf and the petitioner-opposite party also did not in so many words assert that sender or her representative had signed or initialed on the courier receipt and accepted the terms and conditions thereon, therefore, petitioner could not rely on them to non-suit the complainant or to limit its own liability. This condition limiting the liability of the petitioner, as noted above, is in small and fine print and as noted above it is not pleaded that attention of the sender or her representative was drawn to any such conditions of the courier service rendered by the petitioner. Then the article meant for Phinheira could not have been given to his peon without ascertaining if he was agent of Phineheira or was authorised to receive any such document or was usually receiving it for Phineheira . It could not be said that peon was other person on behalf of Phineheira to receive the document. If we refer to Order V Rule 15 of Code of Civil Procedure it is specifically mentioned that a servant is not a member of family within the meaning of that Rule which provides when defendant is absent from his residence at the time when service of summon is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time and he has no agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him.
Decision of the Supreme Court in the case of Bharthi Knitting co. Vs. DHL Worldwide Express Courier (1996) 4 SCC 704 does not apply as that case did not consider small and fine print in a document in a standard form.
We, therefore, do not find any error in the impugned order of the State Commission for us to exercise our jurisdiction under clause (b) of Section 21 of the Consumer Protection Act, 1986. This revision petition is dismissed with cost of Rs.2000/-.
.J. (` D.P. WADHWA) PRESIDENT ..J. (J.K. MEHRA) MEMBER .
(RAJYALAKSHMI RAO) MEMBER NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 974 OF 2001 (From the order dated 16.4.2001 in Appeal Nos.2478 & 2492/96 of the State Commission, Rajasthan) Maruti Udyog Ltd. Petitioner Vs. V.M. Goel & Anr. Respondents REVISION PETITION NO. 985 OF 2001 (From the order dated 16.4.2001 in Appeal Nos.2478 & 2492/96 of the State Commission, Rajasthan) M/s.
Alfa Automobiles Petitioner Vs. V.M. Goel Respondent REVISION PETITION NO. 447 OF 1997 (From the order dated 28.2.1997 in F.A. Nos.792 & 735/94 of the State Commission, Haryana) Maruti Udyog Ltd. Petitioner Vs. Sudhir Gautam & Anr. Respondents A N D REVISION PETITION NO. 448 OF 1997 (From the order dated 28.2.1997 in F.A. Nos.792 & 735/94 of the State Commission, Haryana) M/s. Vipul Motors Ltd. Petitioner Vs. Mr. Sudhir Gautam Respondent BEFORE: HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT HONBLE MR. JUSTICE J.K. MEHRA, MEMBER. MRS. RAJYALAKSHMI RAO, MEMBER. MR. B.K. TAIMNI Delivery of
car - delay - claim for increase in price declined For the petitioner in RP Nos.974/01, : Mr. K.P. Sunder Rao, RP 447 & 448/97 and Respondent Advocate For the Respondent in R.P. 974/01 : Mr. Sanjeev Pandey and Mr. P.S. Shetty, Advocate.
For the respondent No.1 in RP : N E M O 447/97 and 448/97 ORDER Dated the 14th December, 2001 PER JUSTICE D.P. WADHWA, (PRESIDENT).
By this order we propose to decide four petitions.
In fact there are two sets of revision petitions. Revision Petition Nos. 974 of 2001 & 985 of 2001 are against a common order of the Rajasthan State Consumer Disputes Redressal Commission and have been filed by the manufacturer and dealer of Maruti vehicles. The other set of petition of Revision Petition No.447 of 1997 and 448 of 1997 is by the manufcturter and dealer of Maruti vehicle .
Revision Petition No.974/2001 & 985/2001 Respondent No.1-complainant-Goel booked a Maruti Standard A.C. Car with M/s. Alfa Automobiles, the dealer of the car manufactured by Maruti Udyog Ltd. The car was booked on 23.10.90. At the time of registration Goel paid Rs.35,000/- as fee for booking.
It was on 12.11.90 that without giving any prior intimation to Goel he was asked to deposit full cost of the car which amounted to Rs.1,32,889.52. He was required to deposit this amount by 15.12.90 and in default to face cancellation of the booking.
On receipt of the letter Goel went to the show room of dealer and met its manager, Bhupinder Dutt. He was assured that car would be delivered within 6 to 8 weks after 15.12.90. Goel says he did tell Dutt that he will have to get Rs. 1.00 lakh from the Bank at high rate of interest. After getting the assurance Goel says he arranged the money from the market on interest which he deposited with the dealer on 15.12.90. However, car was not delivered to him as promised and it was delivered only on 11.7.91. At the time of delivery, however, Goel was asked to pay further sum of Rs.18,524/- on account of increase in the price of the vehicle.
Complaining deficiency in service Goel filed complaint before the District Forum. Apart from the claim of Rs.18,524/-, he claimed some other amounts which presently do not concern us. Both the opposite parties raised preliminary objections questioning the jurisdiction of the Consumer Forum and that there was no delay in the delivery of the car as Goel was told that six to eight weeks time of delivery was only the expected time and further the car was delivered to Goel as per his seniority. District Forum held that there was deficiency in service and directed the opposite parties to refund to Goel Rs.18,524/- with interest @ 9% per annum from the date of deposit till payment. Compensation of Rs.5,000/- was also awarded to Goel for delay in delivery of the car.
He was also awarded cost of Rs.1,000/-.
Aggrieved both the manufacturer and dealer filed appeals before the Rajasthan State Consumer Disputes Redressal Commission which dismissed the same with costs.
Still feeling aggrieved both the manufacturer and the dealer have filed these separate petitions. When the opposite parties got the full amount of the cost of the car and promised period of delivery was six to eight weeks there is clearly deficiency in service in not delivering the car within a period of six weeks to eight weeks and car was delivered only when cost had increased. Six to eight weeks period would never mean six to eight months. It is a known fact that in 1990 it was a seller market for Maruti. Demand of full price before even the car was ready for delivery would itself amount to unfair trade practice. For having got the full price of the cost of the car as on 15.12.1990, opposite parties could not demand further increase in cost if delivery was not made within six to eight weeks. When the complainant was promised that he would be given delivery of the car within six to eight weeks, he could not imagine that delivery could be delayed for a period of six months. It has been rightly held by the State Commission that as far as Goel was concerned he did perform his part of the agreement and failure was on the part of the opposite parties. There has been thus concurrent finding that there has been deficiency in service inasmuch as opposite parties failed to deliver the car within the promised period. We do not find any error of jurisdiction otherwise for us to exercise our jurisdiction under clause (b) of Section 21 of the Consumer Protection Act, 1986.
Revision Petition Nos. 447/1997 and 448of 1997 In this case its is the Sudhir Gautam who was the complainant. Facts are almost similar. There has been delay of seven months in delivery of the car. It has been held concurrently that delay has not been explained by the opposite parties.
It is not material as far as complainant is concerned that at the time of delivery of the car to him seniority was maintained and that car was delivered to the persons as per the dates of their respective booking. The question which arose before the forum below was that when the petitioners got full price of the car and told the complainant that expected time of delivery was six to eight weeks, could be extended to six to seven months. In this case complainant deposited Rs.1,41,288/- on 3.1.91 with M/s. Vipul Motors Ltd. -dealer and at the time of delivery of the car on 8.8.91 complainant was asked to pay further amount of Rs.53,432/-. District Forum allowed the complaint and directed payment of Rs.53,432/- with interest from the date of deposit till payment. There was no order of any payment of further amount or cost to the complainant. Haryana State Consumer Disputes Redressal Commission on appeal filed by both the dealer and the manufacturer upheld the order of the District Forum and dismissed the appeals and was of the view that the payment of full amount at the time of booking was not by way of advance or earnest money but was for cost of the car. State Commission also referred to a decision of the Supreme Court wherein it was held that over charging of the price by the dealer by withholding delivery of the vehicle amounted to unfair trade practice which was to be discouraged and the buyer was to be compensated by the Courts. We are however, not considering the question of any unfair trade practice on this account in the present case to hold that delivery was intentionally delayed to get higher cost as there is no evidence to that effect.. Again there has been concurrent finding and we do not find any jurisdictional error for us to exercise our jurisdiction under clause (b) of Section 21 of the Consumer protection Act, 1986.
We may note that while considering these petitions, we drew strength from the decision of the Supreme Court in the case of Vikas Motors Ltd. v. Dr. P.K. Jain [1999(6) SCC 548].
All these petitions ( Revision Petition Nos. 974/2001, 985/2001, 447/1997 & 448/1997) are dismissed with cost of Rs.5000/- in each set of revisions petitions.
.J. (D.P. WADHWA) PRESIDENT ..J. (J.K. MEHRA) MEMBER ..
( RAJYALAKSHMI RAO) MEMBER ..
(B.K. TAIMNI) MEMBER ..
( B.K. TAIMNI) MEMBER NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI..
REVISION PETITION NO.435 OF 2001 (From the order dated 17.2.2000 in Appeal No.1310/98 of the State Commission, Madhya Pradesh) Mahindra & Mahindra Ltd. Petitioner Versus Lions Club Rewa, Klions Eye Hospital & Anr. Respondents BEFORE:
HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT.
HONBLE MR. JUSTICE J.K. MEHRA, MEMBER.
MRS. RAJYALAKSHMI RAO, MEMBER.
MR. B.K. TAIMNI, MEMBER.
Central Excise Act - exemption notification - refund of duty on vehicle used as ambulance - manufacturer failing to seek refund within time, deficiency service.
For the Petitioner : Mr. Aditya Narain, Advocate For Mr. J.B. Dadachanji & Co., Advocates For the Respondent No.1 : Mr. Vipin Gogia, Advocate For the Respondent No..2 : Mr. R.S. Chadha, Advocate.
DATED THE 14TH DECEMBER, 2001:
JUSTICE D.P. WADHWA, J. (PRESIDENT) Petitioner was opposite Party No.2 before the District Forum, Rewa. He is manufacturer of motor vehicles. Opposite Party No.1 Star Automobiles is its dealer. Complainant who is now first respondent before us filed a complaint in the District Forum alleging deficiency in service by both the opposite parties. Its case was that it was running a Eye Hospital in Rewa and for that purpose it purchased a van manufactured by the petitioner on 3.3. 97 for Rs.3,75,785/-.
The van was purchased from the dealer.
It is not disputed that the van was converted into ambulance and was duly registered with the RTO, Rewa. After the vehicle was registered with RTO complainant sent a form duly filled up to the dealer by registered post on 9.5.1997 for payment to it of the excise subsidy. On 13.11.1997 complainant sent a letter along with permission dated 21.12.1993 from the Health Department of the State Government of Madhya Pradesh, Rewa Office permitting the complainant to run Eye Hospital. This was given to the dealer. This was on account of the fact that complainant was entitled to 15% excise subsidy on the total price after registration of the jeep as ambulance. In spite of various letters and visits to the dealer nothing transpired and ultimately a legal notice was sent by registered post to both the dealer and the manufacturer but too without effect. This led to the filing of the complaint.
It was the case of the dealer that it was merely acting as a post office and it was for the manufacturer the petitioner to claim refund of the excise duty from the Central Excise Department. The dealer said it was in turn approaching the petitioner and it was not therefore, negligent. Petitioner denied the claim of the complainant altogether and said that the complaint was not maintainable.
The question that arose before the District Forum was whether service rendered by the manufacturer and the dealer was deficient.
Complainant led evidence to show that it was guaranteed by the dealer that it will be entitled to refund of 15% subsidy on registration of the vehicle as ambulance. Since the amount of subsidy was not refunded to the complainant in spite of his approaching the dealer and manufacturer time and again, District Forum allowed the complaint and held that complainant was entitled to Rs.56,367/- as 15% excise subsidy from the dealer and also cost of Rs.500/-.
Against that order of the District Forum, the dealer filed appeal before the State Commission. The petitioner-manufacturer was also one of the respondents. State Commission found that it was the responsibility of the manufacturer for claiming refund of the excise duty and not that of the dealer. State Commission, therefore, modified the order of the District Forum to the extent it was held that both the dealer and the manufacturer would be jointly and severally liable to make the payment. It is also ordered that in case the dealer make the payment he shall be entitled to recover the same from the manufacturer. Now it is the manufacturer feeling aggrieved has filed this petition.
When the matter came up before us for admission we passed the following order:
Our attention has been drawn to clause (e) of Exemption Notification No.66 (Page 39) where exemption has been granted to ambulance of the Government Hospitals or the Hospitals which are registered with the Government Department or local authorities. It is stated that the Hospital of the IInd Respondent/Complainant is not so registered. However, there is a letter by which Health Department of the State of Madhya Pradesh has allowed the IInd Respondent/Complainant to run the Eye Hospital. Though we issue notice, we require the Petitioner to apply to the Central Excise Authorities for refund of the Central Excise duty as permissible under the aforesaid notification. List this Revision Petition on 17.7.2001.
In pursuance of that order petitioner did apply seeking refund but that application was rejected by the Deputy Commissioner, Central Excise vide order dated 24.5.2001. That order has been brought on record, relevant para of which we reproduce as under:
3. The details of the refund claim, in brief, are that a vehicle falling under Ch. No.87.03 cleared on payment of duty @ 40% adv., on invoice No.1690 dt. 19.11.96 was subsequently registered as Ambulance in the name of Rewa Lions Eye Hospital, on 13.3.1997 with the R.T.O. Rewa. According to the notification, (i) the manufacturer has to furnish a certificate from the R.T.O . to the effect that motor vehicle has been registered as ambulance, within three months of the clearance of the said motor vehicle from the factory or such extended period as the Asstt. Commr. may allow. In this case, the manufacturer did not request for extension for this purpose.
(ii) The exemption in case of ambulance is only applicable for hospitals, nursing homes etc. as the Central Govt. may notify in the Official Gazette. The vehicle was registered as ambulance in the name of Rewa Lions Eye Hospital.
From a copy of certificate No. 643, issued by the Govt. of Madhya Pradesh, it seems that the certificate was issued to Lions Club, Rewa, which was registered on 14.9.1993 under Societies Registration Act, 1973 (S.No. 44 of 1973).
The assessee also filed a copy of letter dated 21.12.1993, issued by the Chief of Medical and Health Dept. , Rewa, permitting the Lions Eye Hospital, Rewa to conduct eye related surgeries/operations. However, the manufacturer did not produce any documents evidencing that the Lions Eye Hospital, Rewa was notified by the Central Government in the official Gazette. (iii) The refund claim shoauld be filed in terms of Section 11-B of the Central Excise Act.
4. On verification of the refund claim, it appeared that the refund claim was not filed in time under sec.11-B iof C.E. Act. And is liable for rejection.
In view of the foregoing, I pass the following order.
ORDER I reject the refund application dt. 24.5.2001 filed by the assesses under section 11-B of Central Excise Act, 1944.
It could not be disputed that immediately the van was registered as ambulance a letter was addressed by the complainant to the dealer who had promised that complainant would be entitled to refund of 15% of the excise duty in case the vehicle is registered as an ambulance. Now the dealer says he had been writing to the manufacturer requiring it to seek refund. But there was no action on the part of the manufacturer. It was contended before us that that Eye Hospital run by the complainant is not totally registered under the relevant notification General Exemption No.66 which is issued under the Central Excise Act, 1944 by the Central Government. It is not disputed that there could not be refund of excise duty @ 15% in case the vehicle was registered as ambulence. This exemption applied under the following circumstances:
43.(a) .
(e) In the case of ambulance, the concessional rate of duty shall apply only when the ambulance is supplied to:
(i) hospitals, nursing homes or sanatoriums run by the Central Governments or a State Government or a Union Territory Administration or a local authority, or are registered as such with
(ii) any Department of the Central Government, or a State Government or a Union Territory Administration or a local authority; or
(iii) the India Red Cross Society.
Now it will be seen from the order of the Deputy Commissioner that he rejected the claim of the petitioner-manufacturer who had applied for refund on the ground that claim application was not filed within time under Section 11-B of the Central Excise Act.
It is for the first time before this Commission that an issue is being raised that complainant-Hospital does not satisfy the conditions for claiming exemption. In our view, case of the complainant falls within the exemption notification. Even otherwise it has to receive a liberal construction inasmuch as it is for the benefit of the patients. But the fact remains that till we passed the order on 19.3.2001 requring the petitioner to seek refund on the basis of the notification at no point of time petitioner ever informed the complainant that he was ineligible and no application seeking refund was at all filed. It is a clear case of deficiency on the part of the petitioner, the manufacturer. We, therefore, find no ground for us to interfere with the impugned order of the State Commission in our jurisdiction under clause (b) of Section 21 of the Consumer Protection Act, 1996. This revision petition is dismissed.
Since the petitioner was availing stay of the impugned order we direct that the amount as awarded by the District Forum shall be paid to the complainant with interest @ 12% per annum from the date of the order of the State Commission till payment. Complainant shall also be entitled to cost which we assess at Rs.2,000/-.
J (D.P. WADHWA) PRESIDENT J (J.K. MEHRA) MEMBER (RAJYALAKSHMI RAO) MEMBER .
(B.K. TAIMNI) MEMBER