State Consumer Disputes Redressal Commission
Surjeet Kumar vs Prakash Sales And Another on 13 April, 2012
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. First Appeal No.147/2009. Date of Decision: 13.04.2012. Shri Surjeet Kumar son of Shri Barfi Ram, R/o Village Jhanyani, Post Office Harsaur, Tehsil Barsar, District Hamirpur, H.P., presently residing at Village Jejhwin, Pargana Baseh, Tehsil Jhandutta, District Biaspur, Himachal Pradesh. .. Appellant Versus 1. M/s Prakash Sales and Engg. Corporation, SCO-77, Railway Road, Nangal Dam, Distrit Ropar, Punjab, through its Managing Director (deleted from the array of parties vide order dated 27.08.2010 of this Commission). 2. The General Manager, Customer Care, LML Ltd., C-3, Panki Industrial Estate, Kanpur, U.P. PIN: 208 022. Respondents . Coram Honble Mr. Chander Shekhar Sharma, Presiding Member
Honble Mrs. Prem Chauhan, Member Whether approved for reporting?
For the Appellant: Mr. P.S. Chandel, Advocate For the Respondent No.1: Deleted.
For the Respondent No.2: Mr. Dheeraj Bansal, Advocate O R D E R:
Mr. Chander Shekhar Sharma, Member.
This appeal is directed against the order dated 25.03.2009 passed in Consumer Complaint No.38/2006 of the Learned District Consumer Disputes Redressal Forum, Bilaspur, Camp at Ghumarwin, whereby the complaint was dismissed on the grounds that it is not legally maintainable before the Forum below since the opposite party No.2 had been declared as Sick Industrial Company by the Board for Industrial and Financial Reconstruction in case No.80/2006 in RE: M/s LML Limited as per summary record of proceedings of the haring held on 08.05.2007. However, this complaint was disposed of by the Fora below with the observations that the complainant at liberty to approach the Board for Industrial and Financial Reconstruction, Ministry of Finance Jawahar Vyapar Bhawan, New Delhi for his grievances, if so advised and in view of the prayer of the complainant for replacement of the defective scooter, the opposite party No.1 cannot be held liable to replace the defective scooter as it is the manufacturer, who is liable to replace the defective scooter with new scooter free from any defect in view of warranty. Parties hereinafter are to be referred as per their status.
2. Factual matrix of the case in nutshell is that the complainant is running the shop of Medical Practitioner and that the complainant has to go to his permanent house and also to other stations on account of his business and therefore, he intended to purchase the new scooter and as such, the representatives of opposite parties came at village Jejhwin in his shop in the month of May, 2005 and after completing the formalities, the representatives of the opposite party No.1 delivered the possession of new scooter model LML HP May, 2005 engine No.E16KM-034663, chassis No.CIKM 482754 LML company to the complainant at his aforesaid village and the said scooter was registered as HP-21-A-1518 and was also insured.
3. Further allegations in the complaint are that after bout 15 days of purchase, some defect occurred in the scooter, i.e. sound pollution, less average of 25 kilometres per litre, pick up and shocker problem and when the scooter was driven for 15 kilometres, its engine turned hot and thus, the complainant brought the problem to the notice of opposite parties with the request to replace the scooter with new one as the scooter is defective one and that the warranty got the service from time to time from the opposite parties/authorized dealer and the opposite parties hanged buzzer and corborator, kit piston and jet, gasket oil and rotor of the scooter on 08.06.2005, 28.06.2005, 09.09.2005 and 13.10.2005, respectively, but the problem is still continuing to the engine of the scooter and hence the complainant had again visited the authorized dealer on 25.12.2005 and a request was made for repairing the scooter or to give him a new one.
4. Lastly, it was alleged that now the engine of the said scooter has been ceased and is not in a working condition and thus, the complainant had to purchase another scooter. Hence, deficiency of service had been alleged on the part of the opposite parties.
5. In this background, the complaint under Section 12 of Consumer Protection Act, 1986 had been filed for deficiency in service, wherein the complainant has prayed for directions to the opposite parties to replace the defective scooter with new one and to pay a sum of `50,000/- as compensation on account of mental harassment, financial and physical hardships suffered by him.
6. This complaint was contested and resisted by the opposite parties.
The opposite party No.1 in its version had raised preliminary objections in the reply that the complaint is not maintainable in the present form, the complainant has no cause of action to file the complaint, the complaint is bad for mis-joinder and non-joinder of necessary parties, the complainant is estopped to file the complaint by his own acts, conducts, omissions, and commissions and that the Forum has no jurisdiction to hear and decide the complaint. On merit, it was alleged that the complainant is not a permanent resident of District Bilaspur and his permanent residential house is situated in District Hamirpur and the complainant has concealed the material facts from the Forum. It is admitted that the complainant has purchased a new scooter of LML company, i.e. model LML HP May, 2005, but it was alleged that in-fact, the complainant himself approached the opposite party No.1 at Nangal for purchasing the scooter and the same was handed over to him at Nangal, Punjab.
7. It was further alleged that neither the replying opposite party No.1 has appointed any representatives nor the home delivery of scooter facility was offered to its customers and moreover, the complainant has not arrayed the alleged representative as a party in the present complaint.
8. Further allegations in the reply were to the effect that the opposite party No.1 has never requested by the complainant to replace the aforesaid vehicle, but the vehicle was got repaired/serviced as per warranty card issued by opposite party No.2.
9. It is further alleged that on 13.10.2005 when the complainant came with the scooter to the opposite party No.1 for repair/service, he admitted that he got repaired the vehicle from the road side mechanic, which is against the warranty conditions. It is denied that the mechanic came in village Jejhwin to repair the scooter in question. It is also alleged that the complainant has not followed the warranty conditions and moreover, the warranty of the said vehicle has been given by opposite party No.2 and if there is any breach of warranty conditions, the opposite parties are liable.
Lastly, it is alleged that at the time of purchase of the scooter, the parties have agreed to decide their dispute at Ropar, Punjab.
10. Opposite party No.2 in the present case had been proceeded against ex-parte vide order dated 19.09.2006 passed by the Fora below. However, the reply on behalf of opposite party No.2 was received, wherein it had been alleged that M/s LML Limited Kanpur has become a sick company within the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 and reference case No.80/2006 was filed before the Board of Industrial and Financial Reconstruction and the Board in its hearing on 08.05.2007 declared the company sick in terms of Section 3 (1) (0) of Sick Industrial Companies (Special Provisions) Act and hence, in view of mandatory provisions of Section 22, no action or claim and any legal proceedings is permissible to be filed or continued or proceeded without the permission of the Honble Board against the Sick Industrial Company. A copy of summary record of proceedings of the hearing held on 08.05.2007 of Board of Industrial and Financial Reconstruction in case No.80/2006 in RE: M/s LML Limited has also been furnished with the reply by opposite party No.2.
11. Brief resume of evidence led by the parties in nutshell is that the complainant in support of its case has filed his own affidavit and affidavit of Shri Vijay Kumar mechanic and of Sarwan Kumar and had placed reliance upon number of documents Annexure C-1 to C-26.
12. Opposite party No.1 in support of its case had filed the affidavit of Shri Rajinder Kumar Verma Manager of opposite party No.1 as Annexure R-1 and placed reliance upon number of documents Annexure R-2 to R-5.
13. We have heard the learned counsel for the parties and gone through the record of the case minutely.
14. Learned counsel for the appellant Mr. P.S. Chandel argued that the order of the Fora below is not legally sustainable and he had produced three documents viz. form No.21 which is on the pad of K.K. Motors. As per him in Form No.22, the address firm is the same as given in the memo of parties of opposite party No.2, viz. LML Limited, C-3, Panki Industrial Estate Kanpur, U.P. PIN:
208 022. As such as per him this company is still under operation and had been wrongly declared as a sick industrial company and he also argued that there is ample evidence on record to prove that there was manufacturing defect in the scooter and the Fora below had wrongly came to the conclusion that the complaint is not legally maintainable, since the opposite party No.2 has been declared as sick industrial company by the Board of Industrial and Financial Reconstruction.
15. Mr. Dheeraj Bansal learned counsel for the opposite parties had supported the order of the Fora below.
16. After hearing the counsel for the parties and gong through the record of the case, we are of the considered view that the order of the Fora below is not legally sustainable since it is not in conformity with the judgment of National Commission in case Manohar Lal Bhandari and another versus Sun Earth Ceramics Ltd., reported in 2008 (3) CPR 250 (NC), wherein it was held that sick industrial companies (Special Provisions) Act, 1985 does not place any restriction on consumer Fora to deal with a complaint pending proceedings under said Act and as such the Fora below had wrongly concluded that the complaint is not maintainable before the Fora below and direction has been given to the effect that the complainant is at liberty to approach the Board for Industrial and Financial Reconstruction, Ministry of Finance Jawahar Vyapar Bhawan, New Delhi.
17. The relevant portion of para-3 of the aforesaid judgment is extracted herein below for ready reference:-
Reliance has been placed on the decision in Sneha Dyechem Ltd. v. Jyoti Rathore.
This decision was rendered with reference to Section 22 of the Act. Act of 1985 does not provide for any permission to continue with a pending complaint filed under the Consumer Protection Act, 1986 nor deoes it place any restriction on the consumer Fora to deal with a complaint pending proceedings under the said Act.
18. However, the documents which have been produced at the time of arguments by the learned counsel fort the appellant cannot be taken into consideration, since they were not produced before the Fora below nor any application for additional evidence had been filed by the appellant.
19. In view of the aforesaid discussion, facts and circumstances of the case and legal position explained above, there is merit in the present appeal and it is accepted. The order of the Fora below is not in conformity with the judgment of National Commission given in case Manohar Lal Bhandari and another versus Sun Earth Ceramics Ltd., (supra) and as such the order of the Forum below dated 25.03.2009 is set aside and the complaint is remanded back to the Fora below with a direction to decide the complaint afresh after hearing the parties in-accordance with decision of National Commission given in case Manohar Lal Bhandari and another versus Sun Earth Ceramics Ltd., (supra). The Fora below is directed to make expeditious disposal of the complaint preferably deciding the same within a period of three months from the date of presence of parties after issuing notices.
20. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Chander Shekhar Sharma) Presiding Member (Prem Chauhan) Member April 13, 2012.
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