DILIP PRABHAKAR KULKARNI vs LONDHI PATIL AUTOMOBILES

APPLICANT/original complainant, Mr. Dilip Kulkarni, and respondent in Appeal No. 1214/99 present. Respondent in this application/original O.P. and appellant in the appeal is absent. The affidavit of service dated filed by the applicant in proof of service of notice in the application for hearing by the respondent is filed, which is taken on record.

THIS application has been moved by the present applicant on 19.4.2000. We have heard the applicant, who is present in person. Also we have perused the application herein as also the proceedings in appeal, filed by the respondent and the order dated 2.6.1999 passed by the District Forum, Solapur in C/133/98.

Although in the application, the applicant has mentioned various facts, which mostly pertain to the chequer history of the litigation, the applicant is seeking correction in the order dated 17.12.1999 passed by this Comission in A/1214/99 which was filed by the respondent herein. The statement which is sought to be corrected or objected as appearing in the said judgment reads as "the respondent is not willing to hand over the motor cycle to the appellant".

BY reading the said statement, it gives the impression that the motor cycle in question being the subject matter of the dispute was lying with the present applicant when in fact it was with M/s. Londhe Patil Automobiles Pvt. Ltd. Since it was a question of rectifying the statement appearing in the judgment, we issued notice to the responent M/s. Londhe Patil Automobiles in this application on 25.5.2000 by means of Hamdast. From the affidavit dated , filed by the applicant, it is noticed that the said respondent refused to receive the notice of this Commission when the applicant attempted to serve upon them as per our order, we accept the said affidavit of the applicant and the statement appearing therein.

NOW, the short point that arises for consideration, is as to whether the statement reproduced above and appearing in the judgment dated 17.2.1999 is factually incorrect and needs to be rectified. As stated earlier for that purpose, we have perused the order dated 2.6.1999 passed by the District Forum in C/133/98 and there is a clear statement made in the said order that after the occurrence of accident, the complainant/present applicant handed over the motor cycle to the respondent. Further more, the applicant has also referred to us the report of the Surveyor M/s. Srikant J. Madur, being dated 18.9.1997, who was appointed by the Insurance Company soon after the accident. In his report dated 18.9.1999, he has stated that when he inspected the motor cycle in question, the same was in the custody of responent herein. Our attention has also been drawn to the copy of letter addressed by respondent herein to Grahak Panchayat, Solapur without date, in which also the respondent has admitted that motor cycle in question was with him. By reading the copy of said letter, it appears thast the respondent wrote the said letter, soon after the occurrence of accident.

IN this respect, another factor which will lend support to the stand taken by the applicant is to the operative part of the order of the District Forum in the main complaint, whereunder the respondent has been ordered and directed either to refund entire amount with interest being the price paid for the motor cycle or alternatively supply the new motor cycle. It is pertinent to note that in the appeal filed by the respondent, this fact has not been disputed.

FURTHER more, the respondent although made attempts to serve the notice in this application for the reason best known to them, refused to accept the same and appear before us. In the circumstances, the following order : ORDER The statement herein in the judgment of this Commission dated 17th December, 1999 passed in Appeal No. 1214/99 and reading as "the respondent is not willing to hand over the old motor cycle to the appellant" stands deleted. The said judgment dated 17.2.1999 to be corrected accordingly. The office shall furnish the certified copy of the corrected judgment to the present applicant expeditiously. With this, this application stands disposed of. However, no order as to cost. Application disposed of.