State Consumer Disputes Redressal Commission
Lexicon Auto Limited vs Sonam Tshring Lama & Others on 6 September, 2010
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 Case No- FA/89/2010 Date Of Filing: 18.02.2010 Date Of Final Order: 06.09.2010 APPELLANT: Lexicon Auto Limited, 40-B Princep Street, Kolkata- 700 072. Branch Office- NH- 31, Matigara, Siliguri, District- Darjeeling, West Bengal. RESPONDENTS : 1. Sri Sonam Tshering Lama, S/o Sri Kami Tamang, Majhi Dhura, P.O Matigara, District- Darjeeling. 2. Tata Motors Limited, 4th Floor, Kanchenjunga Building, 18 Barakhamba Road, New Delhi. 110001. 3. The Tata Engineering & Locomotive Co. Ltd, Center-1 (27th floor) World Trade Center, Cuffe Parade, Mumbai- 400 005. 4. The Tata Engineering & Locomotive Co. Ltd, Zonal Service Office, Malhotra Towers, 3rd floor, Hill Cart Road, Siliguri. 5. The R.M/(E.R.), Telco Regional Office, Appeajay House, 5th floor, Block-A, 15 Park Street, Kolkata. 6. Sri S.K. Mukhia, Purbachal Colony, Near Nepali School ( Devngara), River Side Road, Ward No. 2 , Prodhan Nagar , Siliguri, Pin- 734003. BEFORE: HONBLE MEMBER :
Smt. Silpi Majumder.
MEMBER : Sri. Shankar Coari.
FOR THE APPELLANT : Sri Anjan Dutta, Advocate.
FOR THE RESPONDENTS : 1. Sri Barun Prosad, Advocate.
2-5. Sri. Rajdeep Biswas, Advocate.
-ORDER-
S. Majumder, Member.
This appeal has been directed by the AppellantOP-5 against the judgment-dated 08.12.2009 passed by the Ld. District Forum, Darjeeling in the case no- 17/D/2009, wherein the Forum below allowing the complaint on contest against OP nos 1 to 5 and exparte against OP no6 has directed the OPs to refund the amount of Rs.3,28,485/- along with interest @12% p.a. w.e.f. 05.08.1999 till realization, litigation cost of Rs.5,000/- and compensation to the tune of Rs.25,000/- to the Complainant jointly and severally within 30 days from the date of received of the judgment, failing which the abovementioned total amount would carry an additional interest @ 6% p.a. for the default period.
The brief fact of the Complainant is that he purchased one Tata Sumo from the OPs for earning his livelihood, but the same was suffering from manufacturing defect since the date of purchase. In spite of several attempts, the defects could not be removed. Later the Complainant being aggrieved filed a complaint being no- 53/D/1998 before the District Forum, at Siliguri, but the said case was dismissed on the ground that the Complainant was not a consumer. Similar was the fate of the case in appeal no- SC/488/A/1999 and the Revision Petition no- RP/3292/2004. While the appeal was pending the vehicle was seized by the OPs on 05.08.1999 without any order from the Court. Suddenly after a lapse of long gap from the date of dismissal of Revision Petition the Complainant received a demand notice from the OPs through which the OPs directed the Complainant for payment of Rs.42,211/- as outstanding payment of overdue balance shortfall. Finding no other alternative the Complainant filed the complaint before the Ld. Forum below praying for direction upon the OPs to refund him a sum of Rs.3,28,485/- towards cost of the vehicle, interest @8% p.a. thereon w.e.f 05.08.1999 till entire realization, compensation of Rs.1,00,000/-, litigation cost of Rs.15,000/- and a sum of Rs.1,00,000/- due to negligence and deficiency in service.
Being aggrieved by the abovementioned judgment the Appellant/ OP-5 has preferred the present appeal before this Commission contending that the Ld. District Forum while passing the judgment had omitted to consider the materials on record and as such erred both in fact and in law. The Appellant has submitted in the grounds of memorandum of appeal that the claim of the Tata Motors is barred by limitation because no acknowledgement of debt has been done during long 10 years. The Appellant has mentioned that this case is similar in nature with the earlier case i.e. 53/D/1998 which has been rejected by the Honble NCDRC holding that the Complaint is not maintainable as the Complainant is not a consumer within purview of the Consumer Protection Act. The order of the Honble NCDRC has not been challenged before the Honble Supreme Court of India, therefore, the order of the NCDRC has reached its finality and hence, the present case is hit by the principal of res-judicata. According to the Appellant the judgment passed by the Forum below being not sustainable is liable to be set aside and the Appellant has prayed for allowing the present appeal.
We have duly considered the record, documents and papers very carefully and upon hearing the argument as advanced by the parties before this Commission we have noticed that the Complainant in 1998 filed a complaint before the Ld. District Forum, Siliguri which was dismissed on the ground that the Complainant was not a consumer and same observation has been made by the State Commission, West Bengal as well as the Honble National Commission. It is seen by us that on 04.10.2006 the Honble national Commission has passed its judgment in the Revision Petition no- 3292/2004 wherein the Honble National Commission was pleased to dismiss the Revision filed by the Complainant and accordingly affirmed the order passed by the State Commission as well as the District Forum, the National Commission has mentioned in its judgment that the Complainant not being a consumer cannot file any complaint before the Consumer Forum.
But after a long gap from the said dismissal of the Revision Petition by the Honble National Commission the Complainant received a demand notice from the OPs through which the OP-1 directed the Complainant to pay a sum of Rs.42,211/- towards outstanding dues as payment of overdue balance shortfall. In respect of such demand we are of the opinion that after a lapse of more than 10 years the OP-1 issued a demand notice upon the Complainant claiming sum amount from the Complainant. As the OP-1 did not claim any amount from the Complainant towards overdue balance shortfall within 3 years from the date of filing of the complaint or date of taking possession of the vehicle under their custody, the OPsTata Motors specially the OP-1 cannot demand any amount from the Complainant after such long gap and such claim is not only harassing one, it is also an arbitrary claim which caused damage and mental agony to the Complainant.
Though the Forum below has directed the OPs to pay a sum of Rs.3,28,485/- along with interest @ 12% p.a. but in our opinion the Forum cannot give such direction as the National Commission has already decided that the Complainant is not a Consumer within the purview of the Consumer Protection Act. So, in our opinion as he is not a consumer he cannot get any benefit towards the cost of the vehicle and any amount towards interest but in respect of cost and compensation we are of the view that after dismissal of the revision petition by the Honble National Commission the Complainant did not approach before the Honble Supreme Court and the judgment passed by the Honble National Commission became binding upon the Complainant and no case has been made out by the OPs that the Complainant took any legal action against the OPs , but the OP-1 after taking possession of the vehicle from the Complainant kept themselves silent for a period of more than 10 years and after lapse of more than 10 years one fine morning the OP-1 issued a demand notice claiming some amount from the Complainant towards overdue balance shortfall . It is pertinent to mention that while the appeal was pending before the State Commission the vehicle was seized by the OP-1 on 05.08.1999 and since then the vehicle is under their custody and the Complainant never claimed the said vehicle from the OP-1s custody. But after lapse of more than 10 years being received a demand notice from the OP-1 the Complainant being curious and out of mental agony filed a complaint before the Ld. District Forum. In our opinion as the claim of the OP-1 as time barred Complainant is not under obligation to pay any amount as claimed by the OP-1 through issuance of demand notice. As due to the action the Complainant had to approach before the Forum below the OP-1 shall bear the litigation cost as incurred by the Complainant during this proceeding. The claim of the OP-1 caused mental agony and damage of the Complainant as the claim has no legal basis at all. Hence, we have noticed that the OP-1 has harassed the Complainant intentionally or with ulterior motive. In respect of such harassment this Appellant has no role and for this reason we are not inclined to impose any cost upon the present Appellant.
Going by the foregoing discussion hence, it is ordered that the appeal be disposed of accordingly and the judgment passed by the Forum below is hereby modified. The OPs in our opinion are not entitled to refund a sum of Rs.3,18,485/- along with interest @ 12% p.a., but as the OP-1 harassed the Complainant and disturbed him further by issuance of arbitrary demand notice the OP-1 is liable to pay litigation cost and compensation to the Complainant and in our view it will meet justice if we direct the OP-1 to pay a sum of Rs.2,000/- to the Complainant as litigation cost and Rs.2,000/- towards compensation to the Complainant within a period of 45 days from the date of this judgment, in default the above mentioned amount shall carry interest @9% p.a. for the default period. With the abovementioned observation the appeal is thus disposed of accordingly with the finding that the judgment passed by the Ld. Forum below is hereby modified.
Sri. Shankar Coari.
Smt. Silpi Majumder.
(Member) (Member)