State Consumer Disputes Redressal Commission
Bombay Cycle & Motor Agency Ltd vs Ramsagar Pal on 5 January, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI Revision no.137/2009 Date of Filing: 23/10/2009 @ M.A.No.1641/2009 Consumer Complaint No.103/2004 District Consumer Forum: South Mumbai Date of Order: 05/01/2009 Bombay Cycle & Motor Agency Ltd., Petitioner Office at 534, S.V.P.Road, Opera House, Mumbai- 400 007. V/S 1. Ramsagar Pal, Respondents Shanti Nagar, R-1264/1/2, Salt Pan Road, Wadala, Mumbai- 400 037. 2.Premier Ltd., Regd. Office at-Mumbai Pune Rod, Chinchwad, Pune- 411 019 and Corporate Office at- 58, Nariman Bhavan, 5th floor, Nariman Point, Mumbai- 400 021. And Revision no.138/2009 Date of Filing: 23/10/2009 @ M.A.No.1642/2009 Consumer Complaint No.125/2004 District Consumer Forum: South Mumbai Date of Order: 05/01/2009 Bombay Cycle & Motor Agency Ltd., Petitioner Office at 534, S.V.P.Road, Opera House, Mumbai- 400 007. V/S 1. Agustin Leo Mathais, Respondents Mumbai Taxi Association, Pathare Bhuvan, Kennedy Bridge, Opera House Mumbai- 400 007. 2.Premier Ltd., Regd. Office at-Mumbai Pune Rod, Chinchwad, Pune- 411 019 and Corporate Office at- 58, Nariman Bhavan, 5th floor, Nariman Point, Mumbai- 400 021. And Revision no.139/2009 Date of Filing: 23/10/2009 @ M.A.No.1643/2009 Consumer Complaint No.126/2004 District Consumer Forum: South Mumbai Date of Order: 05/01/2009 Bombay Cycle & Motor Agency Ltd., Petitioner Office at 534, S.V.P.Road, Opera House, Mumbai- 400 007. V/S 1. Suresh Kesarkar Respondents Legla Heir Mrs. S.Kesarkar, Mumbai Taxi Association, Pathare Bhuvan, Kennedy Bridge, Opera House, Mumbai- 400 037. 2.Premier Ltd., Regd. Office at-Mumbai Pune Rod, Chinchwad, Pune- 411 019 and Corporate Office at- 58, Nariman Bhavan, 5th floor, Nariman Point, Mumbai- 400 021. Quorum : Justice Mr.S.B.Mhase, Hon'ble President Mr.S.R.Khanzode,Honble Judicial Member.
Mr.D.Khamatkar, Honble Member.
Present: Adv.Mr.M.Shriraji for petitioner.
Adv.Mr.U.B.Wavikar for respondent no.1.
Adv.Mr.S.C.Surana for respondent no.2.
:-
ORAL ORDER :-
Per Shri S.B.Mhase, Honble President :
These three revision petitions are arising from the order which has been passed by District Forum, South Mumbai in complaint nos. 103,125,126/2004. The present petitioner is a original opp.party no.1 in the said complaints while respondent no.1 is the original complainant and respondent no.2 is the org.opp.party no.2.
The original complainant i.e. respondent no.1 has filed the complaints since they have not received the delivery of the Premier Padmini Diesel Car which they were to use as a Taxi popularly known as DMT. It is also admitted fact before this Commission and also from the order which were taken up to the Apex Court i.e. 147 taxies were booked with the appellant initially, the appellant being the dealer of the respondent no.2. The amounts which were received by the appellant have been transmitted to the respondent no.2. Respondent no.2 was therefore under contractual obligation to supply the said diesel taxies to the appellant and appellant in turn is supposed to delivered them to respondent no.1 namely complainants as per their booking orders.
The ground for non receipt is also not in dispute. These bookings were carried in the year approximately in March -1999 by the complainants. However, the manufacturing of Premier Padmini 137 DMT and meter taxies was barred by Government of Maharashtra since 1999. The said circular we are told was operative from August-1999. Under these circumstances respondent no.2 was not in position to manufacture the said car and supply it to the appellant.
Therefore, naturally when the manufacturer/respondent no.2 is not in position to supply the car which has been booked by the complainants, respondent no.2 was under obligation to return the money to the appellant and the appellant in turn shall return the same to the complainants. Unfortunately, the respondent no.2 did not return the said money and therefore, the complaint.
Several defences have been raised by respondent no.2 and round after round litigation is going on, except payment of money to the complainants. In one of the similar matter which is arising from complaint no.DF/SMD/783/2000 dated 18/12/2000 the matter has been taken up to the Apex Court. The defence which has been raised before this Commission was also raised by respondent no.2 in the said matter. Defence of respondent no.2 is that as against the booking of 147 diesel cars the respondent no.2 has supplied 160 petrol cars to the appellant and appellant has accepted the delivery of the said cars. As against that the appellant have contended that no such cars were delivered and petrol cars are not received by them.
We need not to go into this controversy. However, this defence makes it very clear that as per the booking, the diesel cars were not given by respondent no.2 to the appellant and consequently, to the complainants/consumers. The complainants/consumers were interested of taxi business of diesel car and therefore, they may not have accepted delivery of the alleged petrol cars, if offered. The very fact that whether the petrol cars have received or not is a dispute between the appellant and respondent no.2. However, since that dispute is in between the manufacturer and dealer that cannot be entertained and considered and decided in this case.
They may follow the separate remedy available to the them. The point which arise for consideration is that under these circumstances whether manufacturer is liable to return the amount or not. However, that point is no more res integra for this Commission because Honble National Commission in the order dated 29/01/2008 in Revision Petition no.4021/2006 have already made observations as under:
In any case, the primary liability to refund the amount in a case where the delivery of vehicle cannot be made is that of the manufacturer who has appointed the dealer/agent for collection of sale consideration in advance.
This order was challenged by filing SLP being no.10337/2008 before Apex Court and the said SLP was rejected by the Apex Court by order dated 28/04/2008. Therefore, the observations which were made by Honble National Commission stated above have attend finality so far as respondent no.2 is concerned.
Thereafter, in the above referred complaints wherein impugned order has been passed, respondent no.2 preferred an application seeking permission of District Forum to cross examine the complainants. The said application dated 16/05/2008 and on the said application impugned order was passed. By the impugned order the application has been rejected. However, the opp.party no.2 namely the respondent no.2 has been permitted to give interrogatories. It is interesting to note from that order that it cannot be followed that interrogatories can be given by respondent no.2 to whom i.e. whether to the complainant and or whether to the appellants because so far as the complainants are concerned there cannot be interrogatories. In view of the admitted facts, namely, the complainants have paid the amount and booked the taxi and amount have been transmitted by the appellant/dealer to the manufacturer namely respondent no.2. There can be a dispute between the appellant and respondent no.2. However, since we find that it cannot be adjudicated in this consumer complaint. Therefore, to accept the interrogatories in between the appellant and respondent, will be out of the scope of the enquiry which is pending before District Forum.
We cannot ignore the fact that the legislature while drafting the law for protection of the consumers is concerned about the speedy and expeditious remedy available to the consumers and matter are conducted in summary manner which are conducted under the Act and Rules and therefore, consumer Foras are under obligation to find out that any attempt to protract hearing of the cases shall be frustrated and the attempt should be made to curtail the said protraction on the part of parties. In the present case the respondent no.2 is aware that the National Commission has directed refund of booking amount.
Respondent no.2 is also aware that the said order has been confirmed by the Apex Court as observed supra. Therefore, to protract the proceedings, respondent no.2 has given application to grant permission to cross examine complainant. In fact, there is nothing on record to make such prayer for cross-examination. The application for cross-examination is rightly rejected. However, District Forum has allowed respondent no.2 to give interrogatories. But we find that as the production of Diesel Taxi 137 was barred by Government and the booking amount of complainant was not refunded, there cannot be any interrogatories to complainant/ respondent no.1. The other dispute of delivery of petrol taxi is between the appellant and respondent no.2 but that dispute cannot be resolved in consumer dispute as observed supra. Therefore, we are of the view that the application given by respondent is nothing but an attempt to protract hearing of consumer complaint and thereby to delay the refund of booking amount.
Therefore, we find that application was misconceived and order permitting interrogatories is bad and illegal. Therefore, even though respondent no.1 has not taken exception to said order, we invoke our power under Section 17 (186) of Consumer Protection Act, 1986 and quash and set aside order as against respondent no.1. Hence, we pass the following order:-
:-ORDER-:
1. Revision petition of petitioner stands rejected.
2. M.A.Nos.
1641, 1642 & 1643/2009 stands disposed of.
However, the application given by respondent no.2 seeking permission to cross-examine respondent and petitioner and order on said application granting permission to give interrogatories is hereby quashed and set aside so far as respondent no.1 is concerned. This we do under Section 17 (1) (b) of Consumer Protection Act, 1986.
2. Parties shall bear their own costs.
3. Pronounced in the open court.
4. Copies of the order herein be furnished to the parties as per rules.
(D.Khamatkar) (S.R.Khanzode) (S.B.Mhase) Member Judicial Member President Nbh