SWATI AUTOMOBILES LTD. vs SATISH CHAND

THIS is an appeal (First Appeal No. 146 of 1991) against the Order dated the 10th June, 1991 of The State Commission of U.P. The State Commission had found that the Car given by the appellant herein to the Respondent Complainant had many defects and that the Appellants were careless in removing the defects, that the Respondent complainant could not get the specific model of the new car and could not use the same. Because of the defects and the. failure of the Appellant in removing them, the State Commission directed that the car sold by the Appellants to the Respondent should be taken back by the Respondent, the amounts received by Respondent No. 2 should be refunded to the Complainant and pay interest thereon at the rate of 15 per cent per annum from 11th July, 1991. It disallowed the other reliefs sought for by the Respondent complainant viz. interest from 16th March, 1990 by which time the respondent complainant had deposited the price of the car, freight charge, road taxes, insurance etc, with the appellant supplier, the cost of the proceedings before consumer Forums and compensation for damages and costs incurred by the respondent complainant.

THE grounds on which the Appellant have assailed the order of the State Commission are that the Appellant No J had received summons from the State Commission of U.P. for hearing on the 25th April, 1991 but tire District Administrator bad imposed curfew in the own due to communal riots. As such, the appellant No. 1 M/s. Swati Automobiles. Saharanpur could not appear before the State Commission. (The appeal does not indicate that the curfew was imposed in Saharanpur, but the affidavit filed by the appellant no. 1 states that the curfew was imposed in Dehardun. U.P. because of communal riots). Secondly, according to the appellant no.1, his representative did put in appearance on the 25th April, 1991 and requested for adjournment on the ground'' that he wanted time for filing of the Written statement and also because the complainant could not himself appear due to the compelling circumstances mentioned above. He also prayed for one month''s time for filing Written Statement. The Commission is reported to have informed him that the case would be heard on 31st-May, 1991. When, however, the appellant''s legal and decided the matter ex-parte on the 25th April, 1991. The State Commission eventually passed the Order in this case on 10th June, 1991 without giving an opportunity to the appellant of being heard.

THE Respondent complainant in his rejoinder has pointed put that the appeal does not indicate that there was curfew on the relevant date at Saharanpur, that according to the affidavit of the Appellant No. 1 and also according to the application for stay of the Order passed by the State Commission, the curfew was imposed in Dehradun. As such this was .not a valid ground for non-appearance of the appellant resident of Saharanpur at the hearing on the 25th April, 1,991. The absence of the Appellant.No.2, the manufacturer at the hearing-on that date is also not explained. Further the complainant has disputed the imposition of curfew even in Dehradun in April, 1991. He has also disputed the statement of the appellant that any authorised representative of his appeared before the State Commission on 25th April, 1991 when, according to the Appellant, the case is alleged to have been adjourned to 31st May, 1991,

THE Respondent complainant has also challenged the statement of the Appellants that the authorised legal representative of the Appellant '' appeared before has State Commission on 31st May, 1991. The Respondent claimant has further challenged the statement of the appellants that they had filed on application for setting side the ex-parte Order of 25th April, 1991.

IT is evident from the appeal that the Appellant has not averred that curfew was imposed in the town of Saharanpur on the 25th April, 1991 which prevented him from attending the hearing. On the other hand, according to the papers accompanying the appeal viz. the affidavit of the Appellant No.1 and stay application, the curfew was imposed in the town of Dehradun. Again it should have been quite easy to file a copy of the proclamation issued by the District Administrator imposing curfew on the relevant date in Saharanpur. This would have obviated all controversy regarding facts concerning the curfew. The appellant has also not filed along with his appeal a copy of the application said to have been filed by him before the State Commission on or after 31st May, 1991 for setting aside the said ex-parte Order o| 25th April, 1991 of the State Commission.

We also invite attention to the observations contained in para 2 of the Order passed by the State Commission which reads as under: "The State Commission while sending copies of the complainant to both the respondents informed the date as 24.4.1990. On date fixed the complainant himself was present but the respondent 1 and 2 were absent and thereafter the date fixed in the matter was 26.4.1990 however, none was present from the respondent''s side. It was a default on their part and both the respondents were proceeded ex-pane and the case proceeded further."

(Evidently the dates of the hearing should be 24.4.1991 and 26.4.1991 and not 1990). The State Commission also noted that the Appellant who was respondent no. 1 before the State Commission submitted his statement after the completion of the proceedings and the same had not been properly presented before the State Commission. Therefore the State Commission did not take it into consideration.

It would be amply clear from the above that the appellant in F.A. No. 146 of 1991 has failed to establish that the Order of State Commission dated 25th April, 1991 was passed without observing the principles of natural justice. 4. In view of this, this Commission is of the view that there was no failure of justice in this case and the appeal is rejected. The findings of the State Commission are confirmed. 5. In the counter appeal No. 193 of 1991 the appellant complainant has submitted that the State Commission did not give any reasons for disallowing the other reliefs sought for by him, regarding the date from which interest should be paid to him, regarding costs of the proceedings and compensations for damage. This Commission has considered the matter on the basis of the record and submissions made at the hearing. We order as under:

THE Appellant complainant (in First Appeal No. 193 of 1991) would be entitled to interest at the rate of 15 per cent from 16th April, 1990 (one month after he deposited the amount in full for the purchase and transportation of the car, to 10th July, 1991. He is also allowed Rs. 5,000/- as compensation for the inconvenience and loss caused to him on account of the Commission will therefore, stand modified to this extent. The appellant in F.A. No. 193 of 1991 will be entitled to recover Rs. 2,500/- by way of costs from the respondents. Before we hand over this Order, we must express our unhappiness at the casual manner in which the counsel for the Appellant in Appeal No. 146 of 1991 has drafted the appeal memorandum and the application for stay of operation off the impugned Order.