National Consumer Disputes Redressal
Shankar Lal Khimesra vs M/S. H.N.S. Coaches Pvt. Ltd. on 1 September, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1132-1133 OF 2014 (Against the Order dated 20/09/2013 in Appeal No. 1110/2009 of the State Commission Rajasthan) 1. SHANKAR LAL KHIMESRA S/O SH.RANGLAL KHIMESRA, R/O 13 AMBAMATA UDAIPUR RAJASTHAN ...........Petitioner(s) Versus 1. M/S. H.N.S. COACHES PVT. LTD. F-76 B, ROAD NO-5, VISWAKARMA INDUSTRIAL AREA, (THROUGH ITS DIRECTOR, SH.RADHEYKANT SHARMA) JAIPUR RAJASTHAN ...........Respondent(s) REVISION PETITION NO. 1135 OF 2014 (Against the Order dated 20/09/2013 in Appeal No. 1110/2009 of the State Commission Rajasthan) WITH
IA/1066/2014(Exemption from dim documents),IA/1067/2014(Exemption for filing Translation Documents),IA/1068/2014(Condonation of delay),IA/9054/2017(Excemption from personal appearance) 1. SUMIT KHIMESRA S/O SH.SHANKAR LAL KHIMESRA, R/O 13 AMBAMATA, UDAIPUR RAJASTHAN ...........Petitioner(s) Versus 1. M/S. H.N.S. COACHES PVT. LTD. F-76 B, ROAD NO-5, VISHWAKARMA INDUSTRIAL AREA, (THROUGH ITS DIRECTOR, SH.RADHEY KANT SHARMA) JAIPUR RAJASTHAN ...........Respondent(s) BEFORE: HON'BLE MRS. M. SHREESHA,PRESIDING MEMBER For the Petitioner : NEMO For the Respondent : MR. AMRIT PRASAD SHARMA Dated : 01 Sep 2017 ORDER PER MRS. M. SHREESHA, MEMBER Challenge in these Revision Petitions under Section 21(b) of the Consumer Protection Act, 1986 (in short "the Act"), is to the order dated 20.09.2013 in First Appeal Nos. 1110 and 1111 of 2009 passed by the Rajasthan State Consumer Disputes Redressal Commission (in short "the State Commission"). By the Impugned order, the State Commission dismissed the Appeals preferred by the Petitioners, concurring with the findings of the the District Consumer Disputes Redressal Forum, Jaipur First, Jaipur (in short "the District forum"), held that there was no deficiency of service.
2. For the sake of convenience, Revision Petition No. 1132-1133 of 2014 is taken as the lead case. The Revision Petitioner had filed an application seeking exemption from personal appearance on the ground that he is unable to walk and hence cannot attend to the proceedings and to dispose of the matter on merits.
3. The brief facts, stated in the Complaint, are that the Petitioner was in the business of transportation providing best quality of vehicle to ferry people from one place to another. On 22.09.1998, the Petitioner approached the Respondent Company which is a bus body building Company and sought quotation in order to take loan from Tata Finance Company. The Respondent Company gave a quotation of ₹5,11,000/- for making the Bus body, fixing the Air Conditioner and seats inside. The Tata Finance Company sanctioned a loan of ₹11,00,000/- to the Petitioner which was transferred to M/s. Praman Motors, Udaipur, who was the authorised dealer of the Tata Company. It was stated that M/s. Praman Motors gave the Petitioner the Bus belonging to Tata Company, having chassis No. 400060 K.R.Q 119720 for ₹5,34,705/- on 31.10.1998. It was averred that the authorised dealer of the Company gave ₹1,00,000/- discount on the chassis and the same was insured by New India Insurance Company on 06.11.1998 by paying a premium amount in the sum of ₹19,909/. After getting the chassis insured, the Petitioner gave it to the Respondent Company to make the body on 25.11.1998 and thereafter, signed a contract, according to which the Respondent described in detail the type of work would be done on chassis, while making the body. According to this agreement, the Petitioner had to give the Respondent a sum of ₹4,00,000/- and the Respondent would complete the body with the chassis within 75 days, failing which, the Respondent shall pay ₹1,000/- for each day of delay in order to compensate the loss suffered by the Petitioner.
4. An amount of ₹5,00,000/- was paid by the Petitioner to the Respondent i.e. ₹2,00,000/- on 10.11.1998, ₹1,00,000/- on 25.11.1998, ₹1,00,000/- on 22.01.1999, ₹1,00,000/- on 18.03.1999. According to the agreement, the Petitioner had to give only ₹4,00,000/- to the Respondent. After receiving ₹2,00,000/- advance for the Air Conditioner and seats, the bus body was not ready, then the Petitioner bought seats for ₹76,500/- and Air Conditioner for ₹2,70,000/- on 05.12.1998 from M/s. Amar Industries, Gurgaon and sent it to the Respondent so that they complete the work on time. But, the Respondent did not deliver the Complete Bus to the Petitioner for which reason the Petitioner was unable to discharge the loan to Tata Finance Company, who repossessed the chassis on 13.01.2000. Then on 16.04.2002 the Petitioner once again took the chassis from Tata Finance Company and returned the chassis to the Respondent after taking permission from Tata Finance Company. In this manner, the prescribed time spent in connection with the completion of the Bus Body was beyond the terms of the agreement entered into and finally the Bus was given after a delay of 1710 days. It was pleaded by the Petitioner that he is entitled to penalty of ₹1,000/- per day for the delayed period. The chassis was of 1998 model and the Bus Body was given in January, 2006 and because of this delay, the model of the vehicle became eight years old. Consequently, the vehicle had to be sold for ₹6,50,000/- on account of which, Petitioner suffered a loss of ₹7,51,114/-. Hence, the Complaint seeking direction to the Respondent to pay an amount of ₹19,86,074/- under the following heads:
1.
Loss due to sale of vehicle ₹7,51,114/-
2. Delay of 1710 days in making the bus as per agreement @ ₹500/- per day ₹8,55,000/-
3. Balance amount after deduction of bill amount from advance ₹1,99,960/-
4. Loss of dealer discount due to late making of bus body ₹1,00,000/-
5. Compensation due to mental tension ₹80,000/-
5. The Respondent filed the Written Version stating that the vehicle was purchased for commercial purpose and that breach of contract is not within the jurisdiction of Consumer Fora and therefore, the matter should be relegated to the Civil Court. It was denied that any agreement had taken place and that the letter which the Petitioner was relying upon was unsigned. The Petitioner himself did not deposit the amount as per condition No. 16 of the contract i.e. 75% of the payment was to be given before 07/02/1999, which was not complied with by the Petitioner. The Seats and the Air Conditioners were to be purchased by the Petitioner, who did not supply the same and therefore, could not be fixed. Moreover, the financer had taken possession of the vehicle, which also delayed the process. The Petitioner had sold the Vehicle before the filing of the Complaint and therefore, no cause of action survives. The Vehicle was ready long ago but the Petitioner did not take the delivery of the same and it was the Respondent who had to keep the vehicle in the parking area and pay for its maintenance, the dues of which were not settled by the Petitioner. It was pleaded that as per the Petitioner's version, the Vehicle was to be given by 07.02.1999 and this Complaint was filed on 13.11.2006 was hopelessly barred by limitation.
6. The District Forum has observed that the Complaint was barred by limitation noting that as per article 54 of the Limitation Act, 1963, the limitation starts from 07/02/1999. The District Forum also observed that as the vehicle was sold on 23/12/2005 and the Complaint was filed on 13/11/2006, there was no living interest for filing the Complaint.
7. Aggrieved by this order, the Petitioner preferred Appeal before the State Commission, which concurred with the findings of the District Forum and vide order dated 11/03/2011 dismissed the Appeals at the Admission Stage.
8. Dissatisfied by the order of the State Commission, the Petitioner preferred Revision Petition before the National Commission on 08/09/2011 and this Commission vide its order dated 13/02/2012 remanded the matter back to the State Commission to decide the matter afresh on merits, in accordance with law. The State Commission vide order dated 30/11/2012 once again dismissed the Appeals without giving any reasoned order. The Petitioner once again approached this Commission, and vide order dated 25/04/2013 this Commission remanded the matter back to the State Commission with a direction to issue a speaking order, in accordance with law.
9. The State Commission vide order dated 20/09/2013 dismissed the Appeals observing as follows:
" It is also well settled that in case we accept the findings and discretion used by the District Forum, we are not required to refer again the entire evidence on record and give our own findings. The Consumer Protection Act, 1986 has been enacted to provide an additional speedy remedy to protect the rights of a common consumer. As per Section 3 of the Act the provisions of any other law for the time being inforce. Even normal procedure of other laws have intentionally been omitted except for following the principles of natural justice to provide a speedy remedy to the consumers preferably within the stipulated time. The complaints and even the appeals have to be decided summarily after giving due opportunity to the other party.
After having considered entire facts and circumstances since proper discretion has been used by the District Forum in dismissing the complaint of the appellants/ complainants, we find not merit in both the appeals and both are dismissed accordingly."
10. Having regard to the chequered history of these Revision Petitions and the Application of the Petitioner that he is unable to walk and his request to dispose of the matter on merits, these matters are being taken up for final hearing today. These Revision Petition Nos. 1132-1133 and 1135 of 2014 are filed with a delay of 50 and 53 days respectively. For the reasons cited in the affidavit and in the application seeking condonation of delay, the delay is condoned.
11. Heard the Counsel for the Respondent at length.
12. Learned Counsel for the Respondent submitted that on 25/11/1998 an offer letter was given by the Respondent to the Petitioner, in which full details were mentioned as to what type of work will be done while making the Bus Body. On 07/02/1999 the Bus Body was to be delivered subject to payment of 75% of the amount. Learned Counsel submitted that an amount of ₹2,00,000/- was paid on 10.11.1998; ₹1,00,000/- on 25.11.1998, ₹1,00,000/- on 22.01.1999 and ₹1,00,000/- on 18.03.1999. On 13/10/1999 the Air Conditioning system was purchased. While so on 13/01/2000, Tata Finance Company has taken possession of the disputed Bus for 822 days and thereafter the Petitioner had taken the Chassis once again from the Financer and handed it over to the Respondent.
13. Learned Counsel argued that prior to filing of this Complaint before the District Forum the Petitioner sold the Bus on 23/12/2005 and therefore, the Complaint is not maintainable. He further contended that the District Forum was right in dismissing the Complaint on the ground of limitation as the Bus was to be delivered on 07/02/1999 and the Complaint was filed belatedly on 13/11/2006.
14. At the outset, it has to be seen whether the Complaint is barred by limitation. It is an admitted fact that the Bus was to be delivered on 07.02.1999. A brief perusal of the Agreement shows that on 25.11.1998 the Respondent had agreed to carryout fabrications of the disputed Bus on the following terms and conditions:
1.
Structure :
Tublar G.I.
2.
Panelling :
All Aluminium of 12 guage Thermocol Plywood & PVC Coverings.
3.
Roof :
12mm BWP Plywood, Aluminum Sheets Thermocol, Plywood And PVC Coverings
4.
Windows :
415,1562 with special EPDM Rubber.
5.
Floor :
12mm BWP Plywood,+ 16 guage Chequired plate and carpeted in the gallery.
6.
Luggage Carrier :
New as per design.
7.
T.P. :
Large Size
8.
Electric :
3Tb+ Speakers Ahuja, Board for reading lamp and music vol. controller.
9.
Curtains :
As per choice and seat covers full size.
10.
Driver Door :
Full size.
11.
Main Door :
Mech. Operated
12.
Illegible :
O/E any piece triplex, Bumper front, 10 gauge.
13.
Clause :
₹1,000/- per day after 15 days of date of delivery i.e. 07.02.1999.
14.
Rates :
₹4,00,000/-(without passenger seats and A/C unit)
15. Delivery :
75 days from 25.11.1998.
16. Payment :
₹1,00,000/- along with chassis ₹1,00,000/- on structure ₹1,00,000/- after panelling ₹50,000/- on window stage complete ₹50,000/- on delivery.
15. It is evident from this letter that the Bus was to be delivered on 07/02/1999 and the penalty was ₹1000/- per day after 15 days of the due date of the delivery. It is pertinent to note that the Respondent, while denying that any contract was entered into, at the same time is relying on this clause that the date of cause of action begins on 07/02/1999. Both the submission are self-contradictory, the Respondent has admitted that the date of delivery of the Bus was 07/02/1999 as per clause 13. Hence it can be construed that the terms of the agreement were accepted by both the parties. If, admittedly the Bus was not delivered till the year 2006, it can be construed as continuous cause of action. In fact the final bill dated 16/01/2006, filed as annexure P-2, which has not been rebutted by the Respondent, is reproduced hereunder:
INVOICE HNS Coaches FOR TODAY & TOMORROW HNS COACHES PRIVATE LIMITED F-76 B, ROAD NO. 5, V.K.I. AREA, JAIPUR-302013 PHONES: 0141-233.373 0141-2330473 FAX NO. : (91)-141-2331331 GRAM : "HANSCOACH"
Email: [email protected] Visit us at : www.hnscoaches.com TO SHRI SHANKAR LAL JI KHIMESHRA UDAIPUR INVOICE NO.
JP/HNS/52/2005-06 DATED January 16,2006 DESCRIPTION QTY.
RATE AMOUNT FABRICATION & MOUNTING CHARGES OF BUS BODY ON YOUR TATA LP 1312/52 TC BUS CHASSIS AS PER SPECIFICATIONS AS DISCUSSED WITH YOU.
CHASSIS NO. : 119720 ENGINE NO. : 62112023 ONE 2,88,500 2,88,500 Rs.3,00,040 Only CST/RST @ 4.00% 11,540.00 Rs. Three Lac Forty Only Total 3,00,040 E & O.E. RST/CSTNO. 1423/02425 Date 06.06.1973 TIN NO. 08692202364 for HNS COACHES PRIVATE LIMITED DIRECTOR/MANAGER
This bill evidences that the vehicle was not delivered up to 16/01/2006. Therefore, viewed from any angle, the Complaint, cannot be stated to be barred by limitation.
16. A legal notice (Annexure P-13) was issued by Mr. Sumit Khimesra on 29/10/2002 for which the material on record does not evidence that any reply was given. However, Annexure P-14 dated 03.09.2006 establishes that a reply was issued by the Respondent to the legal notice dated 31.07.2006. It is pertinent to note that there is no reply to the legal notice dated 29.10.2002 filed before us. In the reply to the legal notice dated 31.07.2006, it was stated that the Petitioner had not made the relevant payments on time. The material on record shows that a payment of ₹5,00,000/- was made by Mr. Shankar Lal Khimesra and this has not been rebutted by way of any documentary evidence by the Respondent herein. The payments made by Sumit Khimesra, the Petitioner in Revision Petition No. 1135 of 2014, are evidenced by Annexure P-17, which exhibits that an amount of ₹50,000/- was paid on 25/01/1998, ₹50,000/- on 10/04/1999, ₹50,000/- on 19/10/1999 and ₹30,000/- on 01/06/2002, besides supplying the seats and the air conditioning system. The same was also averred in the legal notice dated 21/10/2002. The material on record does not show any reply given to the legal notice dated 29.10.2002 issued by Mr. Shankar Lal Khimesra. The Respondent could not give any substantial reason for not having replied to the same. The Submission of the counsel for the Respondent that the vehicle was sold prior to the filing of the Complaint and therefore the Petitioner ceases to be a consumer cannot be sustained as the Petitioner was constrained to sell the vehicle at a loss only on account of the act of deficiency of service in terms of the inordinate delayed delivery by 1710 days by the Respondent.
17. Keeping in view, the facts and circumstances of the case and the equity involved, awarding a lump sum compensation of ₹2,50,000/- and ₹1,00,000/- respectively to the Petitioners, herein, is considered to be just and equitable for the loss incurred on account of the inordinate delay in the delivery of the vehicle. The Petitioners, have purchased the said vehicle by taking a loan from Tata Finance Company, for their means of livelihood, but could not enjoy the benefits of the ownership of the said vehicle and in fact suffered mental agony on account of the act of the Respondent, who had delivered the vehicle after a delay of 1710 days, after having accepted the entire payment.
17. For all the aforenoted reasons these Revision Petitions are allowed in part, setting aside the order of the fora below and directing the Respondent to pay an amount of ₹2,50,000/- to Mr. Shankar Lal Khimesra and ₹1,00,000/- to Mr. Sumit Khimesra within four weeks from the date of receipt of the order, failing which the amount shall attract interest @ 9% p.a. from the date of filing of the Complaint till the date of actual realization. I also award Costs of ₹10,000/- to be paid to each of the Petitioners by the Respondent.
18. In the Result these Revision Petitions are allowed in part with the aforementioned directions.
...................... M. SHREESHA PRESIDING MEMBER