Khivraj Motors vs V.CHANDRA BABU

BOTH these appeals arise out of the order dated 27th day of May, 1997 in O.P. No. 416/96 on the file of the District Consumer Disputes Redressal Forum, Madras-South. The appellant in AP 467/97 and the appellant in AP 531/97 are respectively the opposite parties 1 and 2 while the 1st respondent in both these appeals is the complainant.

FOR avoidance of any confusion, we may refer to the original array of parties in these appeals. The 1st opposite party M/s. Khivraj Motors Ltd., Chennai-6 represented by its Manager, it is said, is the dealer for the sale of ambassador cars manufactured by the 2nd opposite party M/s. Hindustan Motors Ltd., Excise Division, P.O. Hindmotor, Hoogly District, West Bengal. In January, 1995, the 1st opposite party effected sale of an ambassador car to the complainant one V. Chandra Babu, Choolaimedu, Chennai-94. The said car was used as a taxi and was intended to be used as a taxi. The excise duty rebate, it is said, is provided for cars registered as taxi and the excess rebate refundable is to the tune of Rs. 15,881/-. This amount is to be refunded from out of the total cost of the car paid by the complainant. The complainant, it is said, approached the opposite parties for the refund of the amount. After several reminders the 1st opposite party informed that a cheque bearing No. 491398 drawn on UCO Bank dated 21.2.1995 for a sum of Rs. 15,881/- issued by the 2nd opposite party was sent by speed post to the complainant on 8.4.1995. The complainant, it is said, has not received the said cheque and as such the amount liable to be refunded to the complainant remains still due.

The complainant therefore sent a legal notice to the opposite parties on 8.5.1996 and notice so sent was stated to have been received by both of them. The 1st opposite party sent a reply dated 20.5.1996. It appears the 1st opposite party instructed the 2nd opposite party to issue a fresh cheque if the cheque earlier issued was not encashed.

SINCE the complainant had not actually received the amount due to him by way of rebate in excise duty from the opposite parties, he preferred a complaint before the Forum below alleging deficiency in service on the part of the opposite parties and claiming recovery of the amount of Rs. 15,881/- together with interest @ 18% per annum from 21.12.1994 the date of purchase of the car and costs. The 1st opposite party filed objections reflected as below : The transaction in question will not come under the ambit of the Consumer Protection Act, 1986. The 1st opposite party would claim that the 2nd opposite party manufacturer sent a cheque dated 21.2.1995 for Rs. 15,881/- and the said cheque was drawn in favour of the complainant and it was sent to the 1st opposite party, who in turn sent the same to the complainant by speed post on 8.4.1995. It is further claimed that the enquiry with the Postal Department showed that the said speed post containing the cheque was served by the Postal Department on 10.4.1995. Inasmuch as the cheque had been delivered to the complainant, the 1st opposite party is not liable for the above amount.

THE 2nd opposite party did not choose to appear before the Forum below. However, it chose to send a detailed written version by post. THE written version so filed reflects as below : THE complaint is barred by limitation. THEre is no privity of contract between the complainant and the 2nd opposite party. THE 1st opposite party is only a dealer and not an agent of the 2nd opposite party. THE amount claimed by the complainant is not liable to be paid by the 2nd opposite party. The Forum below, taking into consideration the pleas of the respective parties in the shape of averments in the complaint and also the written versions filed, the documents filed and also after hearing the projection of various hues of views by them through their Counsel, ultimately came to the conclusion that there was deficiency in service on the part of the opposite parties and consequently directed them to pay to the complainant a sum of Rs. 15,881/- together with interest @ 18% per annum from 21.12.1994 the date of purchase of the car till repayment, and cost of Rs. 500/- within one month from the date of its order giving rise to the present action as stated above by the opposite parties 1 and 2. Since there appears to be some conflict of interest between the opposite parties 1 and 2 they filed separate appeals. In the former action, the 1st opposite party impleaded the 2nd opposite party as the 2nd respondent besides impleading the complainant as the 1st respondent. Likewise, in the latter action, the 2nd opposite party impleaded the 1st opposite party as the 2nd respondent while impleading the complainant as the 1st respondent.

IN both these actions, process had been served. Despite service of process, the complainant V. Chandra Babu remained absent without engaging a Counsel of his choice. When these matters came up for hearing today, the complainant V. Chandra Babu is not present to project his hues of views in these matters. The fact that he is absent does not mean we cannot dispose of these appeals on merits, of course after hearing the respective learned Counsel for the opposite parties 1 and 2 viz., learned Counsel Mr. T. Venkatesh representing Mr. T.S. Gopalan appearing for the 1st opposite party and learned Counsel Mr. R. Balchander appearing for the 2nd opposite party and on perusal of the materials on record. There is no pale of controversy that the 2nd opposite party M/s. Hindustan Motors Ltd., is the manufacturer of ambassador cars and the cars manufactured by them had been sold through their dealer M/s. Khivraj Motors Ltd., the 1st opposite party. It is also not in dispute that the complainant V. Chandra Babu purchased an ambassador car from the dealer 1st opposite party and paid the entirety of the consideration for the said car to the 1st opposite party. It is also not in dispute that the manufacturer 2nd opposite party received the cost of the ambassador car so sold by the 1st opposite party to the complainant. A further fact about which there is no dispute is that the car purchased by the complainant was for the purpose of using it as a taxi. It is also not in dispute between the parties that once the car sold is to be used as a taxi, excise rebate quantified in a sum of Rs. 15,881/- is to be refunded to the complainant. This is an obligation statutorily cast upon the opposite parties.

THE question is whether the statutory obligation cast upon the opposite parties in effecting refund of the excess rebate quantified in a sum of Rs. 15,881/- had been performed without any sort of deficiency on their part. THE 2nd opposite party would claim that the cheque bearing No. 491398 drawn on United Commercial Bank dated 21.2.1995 for a sum of Rs. 15,881/- in favour of the complainant had been sent to the 1st opposite party for onward transmission to the complainant. THE 1st opposite party is not disputing the factum of the receipt of the said cheque from the 2nd opposite party and what the 1st opposite party would claim is that the cheque so received had been sent by speed post to the complainant on 8.4.1995 to his address. THEir further claim is that the said cheque so sent to the complainant had been served by the Postal Department on the complainant on 10.4.1995. THE complainant would however deny such receipt of a cheque as stated to have been sent by speed post by the 1st opposite party to him. The opposite parties did not place any tangible material in the shape of any document pointing out that the cheque stated to have been sent by way of speed post had been actually served on the complainant V. Chandra Babu and what is produced by the 1st opposite party is Ex. B9 dated 27.6.1996 a xerox copy of the letter by the Speed Post Business Office to the 1st opposite party with a copy of the delivery slip. From that we are able to perceive that though the speed post had been addressed to V. Chandra Babu, the same had been received by one T. Anusuya. No material had been placed to show that the speed post so served had been received by the said T. Anusuya holding an authorisation of the complainant V. Chandra Babu. In such state of affairs, to say that the speed post had been received by the complainant V. Chandra Babu, cannot at all be accepted. Apart from these, no material had been placed on record by the opposite parties to point out that the cheque so sent by speed post had been encashed by V. Chandra Babu the complainant. In such state of affairs, the Forum below was rather right in holding that there was deficiency in service on the part of the opposite parties in the sense of not refunding the excise duty rebate legitimately due to the complainant V. Chandra Babu and consequently directing the opposite parties to pay to the complainant a sum of Rs. 15,881/- together with interest @ 18% per annum and also awarded cost of Rs. 500/- which, we rather feel, cannot at all be stated to be unreasonable on the facts and in the circumstances of the case warranting interference.

In fine, both these appeals are dismissed. We however make no order as to costs in the circumstances of the case. Appeals dismissed.