State Consumer Disputes Redressal Commission
M/S Mega Motors vs Sh. Manoj Kumar Agarwal on 1 June, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 171 / 2006
M/s Mega Motors
5.5 K.M. Stone, Rampur Road
Bareilly
......Appellant / Opposite Party No. 3
Versus
1. Sh. Manoj Kumar Agarwal S/o Sh. R.C. Agarwal
R/o Mangal Parao
Haldwani, District Nainital
.....Respondent No. 1 / Complainant
2. Shri Maniraman, Tata Motors Ltd.
Bombay House, 24, Homi Modi Street
Mumbai
3. Sh. Anupam Singh
Regional Manager, Tata Motors Ltd.
Unit No. 305, III Floor
Tower B, Signature Tower
South City-I, Gurgaon
.....Respondent Nos. 2 & 3 / Opposite Party Nos. 1 & 2
Sh. V.K. Srivastava, Learned Counsel for the Appellant
Sh. Atul Virmani, Learned Counsel for Respondent No. 1
Sh. S.K. Gupta, Learned Counsel for Respondent Nos. 2 and 3
AND
FIRST APPEAL NO. 202 / 2006
1. Shri Maniraman, Tata Motors Ltd.
Bombay House, 24, Homi Modi Street
Mumbai
2. Shri Anupam Singh
Regional Manager, Tata Motors Ltd.
Unit No. 305, III Floor
Tower B, Signature Tower
South City-I, Gurgaon
......Appellants / Opposite Party Nos. 1 & 2
Versus
1. Sh. Manoj Kumar Agarwal S/o Sh. R.C. Agarwal
R/o Mangal Parao
Haldwani, District Nainital
.....Respondent No. 1 / Complainant
2
2. M/s Mega Motors
5.5 K.M. Stone, Rampur Road
Bareilly
.....Respondent No. 2 / Opposite Party No. 3
Sh. S.K. Gupta, Learned Counsel for the Appellants
Sh. Atul Virmani, Learned Counsel for Respondent No. 1
Sh. V.K. Srivastava, Learned Counsel for Respondent No. 2
Coram: Hon'ble Justice Irshad Hussain, President
Smt. Kusum Lata Sharma, Member
Dated: 01.06.2009
ORDER
(Per: Justice Irshad Hussain, President):
Appellants, authorised dealer of the subject vehicle and its manufacturer, Tata Motors Ltd. were the opposite parties in consumer complaint No. 25 / 2006 decided by the District Forum, Nainital vide order dated 28.06.2006, whereby the appellants were directed to refund the depreciated cost of Rs. 7,50,000/- of Tata Safari car purchased by the complainant from Tata Motors authorised dealer M/s Mega Motors, together with interest @9% p.a. w.e.f. 01.06.2006 till payment; Rs. 15,000/- as damages for mental agony and harassment and Rs. 1,500/- as litigation expenses. It was also directed that on payment of these amounts by the opposite parties, the complainant shall hand over the vehicle with title documents to the opposite parties, who were jointly and severally held liable for paying the above amounts to the complainant.
2. The vehicle in question was purchased on 30.04.2003 for sum of Rs. 8,35,000/- from authorised dealer and according to the complainant, the vehicle started giving problems right from the date of its purchase. Complaint was filed on 13.03.2006 after about three years of the purchase of the vehicle. Specific details of the defects 3 were given in paragraph Nos. 5 and 6 of the complaint and according to the allegations, power steering of the vehicle needed to be changed and there was hole in the upper right hand side door beam of the vehicle, which was not repairable and it also needed to be replaced. The complaint was decided ex-parte against the opposite parties and it is of significance that the District Forum vide impugned order, allowed the complainant to return the purchased vehicle and in lieu thereof, to receive the depreciated cost of Rs. 7,50,000/- with interest and damages, as mentioned above.
3. Appellants, besides questioning the legality and propriety of the reliefs granted by the learned District Forum vide its impugned order, also urged that the complainant secured the ex-parte order in his favour by fraud and by abuse of legal process and, as such, the impugned order is liable to be set aside.
4. Having carefully considered the submissions of the learned counsel for the parties, we may state at the outset that we are persuaded to accept the submission made on behalf of the appellants that the impugned order was secured by playing fraud, by putting in appearance of an unauthorised person, namely, Sh. Ramesh Joshi, Advocate in the proceedings before the learned District Forum, which decided to proceed ex-parte in the complaint against the appellants on account of Sh. Ramesh Joshi, Advocate, failing to file any Authority / Power / Vakalatnama on record on behalf of the appellants.
5. The reasons for the aforesaid inference are that on consumer complaint being filed on 13.03.2006, notices were directed to be sent to the opposite parties - appellants, fixing date of hearing as 17.04.2006. On 17.04.2006, none appeared on behalf of the opposite parties and the learned District Forum adjourned the case for 4 15.05.2006, in order to wait for service report on the notices sent to the opposite parties. The order-sheet of the consumer complaint further indicate that on 15.05.2006, some Advocate (by the name of Sh. Ramesh Joshi) filed an application, praying for adjournment on the ground that duly prepared and executed written statement of the company has not yet been received. With the application, neither Vakalatnama, nor any Authority, nor any Power on behalf of the so-called company or any of the opposite parties was presented and on that ground, the learned District Forum rejected the application and fixed 03.06.2006 for ex-parte proceedings in the complaint. Appellants alleged and their counsel persuasively argued that neither of the opposite parties have any concern with the said Advocate, who was shown to have submitted an application on 15.05.2006 and that in all probability, by playing fraud on them and by abuse of the process of Consumer Fora, the order to the above effect was procured, so that the proceedings in the consumer complaint may be taken up at the back of the appellants and the consumer complaint may be decided against them ex-parte. Nothing has been brought on record, as may have even remotely suggested that the above-named Advocate was, in any way, engaged by any of the appellants. There was neither any Authority, nor Power or Vakalatnama supporting the so-called application for adjournment on behalf of the appellants and in the totality of the circumstances of the case, we have no hesitation to accept the contention that it was a managed and got up application and the order of proceeding the case ex-parte against the appellants was, thus, secured by playing fraud and by abuse of the process of the Consumer Fora. We strongly deprecate the process in which all this happened and the District Forum failed to take into account the glaring aspect that the so-called application on behalf of the appellants was not accompanied by any Authority or Power or Vakalatnama and, therefore, it could have easily smacked foul play behind the move.
5The conduct of the complainant in procuring the order of proceeding the complaint ex-parte, thus, could hardly be said to be above board and at the cost of repetition, we reiterate that the order of proceeding the complaint ex-parte was secured by playing fraud and by abuse of the process of the Consumer Fora.
6. In so far the argument on behalf of the complainant that since the notices were not received back unserved, the order of the District Forum to proceed ex-parte against the appellants was justified, we would like to make a comment that the things were not as simple as said, in view of the peculiar aspects of the case. The way, the things have gone, the matter of not receiving back the notices unserved, assume insignificance and when the approach has been in the above manner, the possibility also can not be ruled out that non-return of the notices unserved, could have also been a managed affair, keeping in view the service reports of the postal department, which we receive in large number of cases and many times those are not seriously taken note of and directions are given for issuing fresh notices, some times twice or thrice, so that proper service could be effected on the party, who has a legal right to oppose the complaint / appeal / revision petition and to bring forward the relevant facts for just and effective decision in the pending matter before the Fora. In short, the fact of non-receipt of the unserved notices of the appellants, in the peculiar facts of the case, pale into insignificance.
7. For the reasons aforesaid and also keeping in view the broad aspects of the case referred with relation to the allegations of the defects in the vehicle, vis-à-vis, the relief granted ex-parte, the order impugned is liable to be set aside, so that the matter may be remanded to the District Forum for decision afresh according to law after giving 6 an opportunity to the opposite parties - appellants to file their written statement and contest the case on merit.
8. Appeals are allowed. Order impugned dated 28.06.2006 of the District Forum is set aside. The case is remanded to the District Forum for decision afresh according to law. The appellants are directed to file their written statement before the District Forum on 15.06.2009 and thereafter the District Forum shall decide the complaint on merit expeditiously. No order as to costs. Send a copy of the order to the District Forum, Nainital.
9. Let the copy of the order be kept on the record of First Appeal No. 202 / 2006.
(SMT. KUSUM LATA SHARMA) (JUSTICE IRSHAD HUSSAIN) K