Consumer Case Studies

National Consumer Disputes Redressal Commission, New Delhi

M B Shah, Presiding Member and R C Jain, Member

Premier Automobiles Ltd - Petitioner

Versus

Chotelal S Mallah - Respondent No.1 and Bombay Cycle & Motors Agency Ltd - Respondent No.2

Revision Petition No. 152 of 2006

Decided on 21.02.2008

 

Consumer Protection Act, 1986 - Section 21(b) - Order placed by Complainant for purchase of a Premier Padmini Diesel 1370 car - Despite receiving full price of ordered vehicle, failure on part of Petitioner to supply vehicle for 8 months - Imposition of ban by government on plying of diesel run vehicles - Cancellation of order by Complainant seeking refund of price- Complaint filed by Complainant on his failure to get refund - Allowed by District Forum - Appeal- Dismissed by State Commission - Revision petition - No dispute that Petitioner- had received sale consideration of vehicle in question, but failed to deliver the same - Petitioner pointed out that delay in delivery of vehicles was occasioned due to policy decision of State Government prohibiting diesel run taxies - This aspect was not relevant because Complainant had cancelled order and had sought refund of price paid by him, which Petitioner were under a legal obligation to refund on such cancellation of order - No illegality, material irregularity or jurisdictional error found in impugned order. Order R C Jain, Member - Premier Automobiles has filed this revision petition against the order dated 8.7.2005 passed by the Consumer Disputes Redressal Commission, Maharashtra State (for brevity 'the State Commission'), whereby the State Commission dismissed the appeal filed by the Petitioner herein against the order dated 17.7.2002 passed by the South Mumbai District Consumer Forum (in short 'the District Forum').

2. The facts leading to the present revision petition, in brief, are that Respondent No.1, Chotelal S Mallah (Complainant) had filed a complaint against the present Petitioner and Respondent No.2, Bombay Cycle and Motors Agency Ltd with the averments and allegations that on 19.8.1997 he was granted a taxi permit by R.T.O., Mumbai and with a view to utilize the said permit, on 9.11.1998 the Complainant placed an order for purchase of Premier Padmini Diesel 137D vehicle manufactured by the Petitioner company by paying an amount of Rs. 3,000/- to Respondent No. 2. Afterwards, the Complainant obtained a loan of Rs. 2,07,000 from the Hindustan Cooperative Bank Ltd, Mumbai for purchase of a taxi and the said Bank issued a cheque for a sum of Rs. 2,73,259/- in the name of Respondent No. 2. It is the case of the Complainant and Respondent No. 2 that the price of the vehicle so deposited with Respondent No. 2 was transmitted to the manufacturer of the vehicle, i.e. the Petitioner company. Despite receiving the full price of the ordered vehicle, the Petitioner failed to supply the vehicle for 8 months. In the meantime, the Govt of Maharashtra imposed a ban on plying of diesel run vehicles as taxies and so, the Complainant was obliged to cancel the order for the purchase of vehicle and asked for refund of the price paid by him. On his failure to get the refund, the Complainant filed the complaint seeking refund of Rs. 2,76,259/- together with interest @ 12% per annum from 23.3.1999 till realization. The said complaint was resisted by the Petitioner and Respondent No. 2, each disputing its liability to refund the amount. The District forum on a consideration of the matter allowed the complaint only against the Petitioner and holding it liable to refund the amount along with interest @ 12% per annum. Aggrieved by the said order, Petitioner filed an appeal before the State Commission but without any success. Hence, the present petition. 3. Before discussing the- merits of the revision petition, it is pertinent to mention that on the date of hearing of the revision petition, two miscellaneous applications were moved on behalf of Hindustan Cooperative Bank Ltd seeking intervention in the present proceedings on the ground that they have vital interest in the subject matter of the present revision petition inasmuch as they had advanced loan to Respondent No. 1 for purchase of taxi and that Respondent No. 1 is liable to repay them a sum of Rs. 3,65,000/- on that account and, therefore, they are entitled to the amount receivable by Respondent No. 1 in terms of the order passed by the District Forum and affirmed by the State Commission. We have heard the learned counsel for the applicant and we are of the opinion that Hindustan Cooperative Bank Ltd is neither a necessary nor proper party in the present proceedings. Their right for realisation of the loan amount from Respondent No. 1 - borrower is dependent on the agreement between them and Respondent No. 1. Merely because an award has been made in favour of Respondent No.1, who took loan from the applicant, is by itself not a factor sufficient to array them a party in these proceedings, more particularly so when they were not impleaded as a party in the proceedings either before the District Forum or the State Commission. We, therefore, dismiss the application with the observation that the applicant will be free to pursue their remedy in accordance with law. 4. On the merits of the revision petition, we have heard Counsels of parties at length. The main thrust of the learned counsel for the Petitioner is that the Fora below have erred in fixing the liability to refund the amount solely on the Petitioner overlooking the important aspect that Petitioner's relationship with Respondent No. 2 was on "principal to principal basis and the transactions were at arms length" and that there was no relationship of principal and agent between the Petitioner and Respondent No. 2. In this connection, learned counsel for the Petitioner has taken us through certain clauses of the agreement entered into between the Petitioner and Respondent No. 2. Even after perusal of the same and having regard to the factual position as to how the said agreement was worked out between the Petitioner and Respondent No. 2 on the ground viz. the Respondent No. 2 had all along been representing to the public at large as the dealer and agent of the Petitioner for the sale and delivery of the vehicles manufactured by the Petitioner. Respondent No. 2 having accepted the sale consideration of the vehicles for and on behalf of the Petitioner and having remitted the same to the Petitioner, there is no escape from the conclusion that Respondent No. 2 was nothing but an agent and dealer of the Petitioner at all relevant times. It will be incongruous to hold otherwise. 5. As regards the receipt of payment of the price of the vehicle in question by the Petitioner from Respondent No. 2, there is a clear admission on the part of the Petitioner in ground 'G' of the memorandum of revision petition. The relevant part of which reads as under: "G. Therefore, whenever payments were received from dealer, as in this case, for certain numbers of cars, the Petitioner does not know the name of ultimate customer i.e. to whom these car's were to be sold by dealer. Apart from this, the Petitioner received payment from Respondent No. 2 for spare parts and other in the consolidated manner. Therefore, the Forum below ought to have decided the issue between Respondents No. 1 and 2 and between Petitioner and Respondent No. 1 for non-delivery of vehicles." 6. Learned counsel for the Petitioner has strongly urged that the payment received by the Petitioner from Respondent No. 2 was not for any individual vehicle or the ordered vehicle but for several vehicles booked by Respondent No. 2 and, therefore, it is not possible to say that the Petitioner, in fact, received the amount for the vehicle ordered by Respondent No. 1. From the statement "Details of receipts from taximen and payment to PAL from 4.2.1999 to 12.7.1999" filed along with additional affidavit of Prakash Patankar before the District Forum, there is a clear mention about a sum of Rs. 2,76,259/- received from Respondent No. 1 Complainant having been remitted to the Petitioner company along with amounts received from other 88 persons, total amounting to Rs. 10,79,072/- This has not been controverted from the side of the Petitioner. We have, therefore, no hesitation in holding that the Petitioner had, in fact, received the same consideration of the vehicle in question, but failed to deliver the same. 7. Learned counsel for the Petitioner then pointed out that the delay in delivery of the vehicle was occasioned due to the policy decision of the State Government prohibiting the diesel run taxies and thereafter on account of certain orders which came to be passed by the Mumbai High Court. This aspect is not relevant because the Complainant had cancelled the order and had sought refund of the price paid by him, which the Petitioner were under a legal obligation to refund on such cancellation of the order. Learned counsel for the Petitioner also hinted that Respondent No. 2 has not accounted for the entire amount received by them from various persons who had booked the vehicles and that they still owe a large sum of money to the Petitioner which the Petitioner has not beer able to recover. In this regard, we may simply observe that we cannot adjudicate upon the said rights of the Petitioner vis-à-vis Respondent No. 2 and the Petitioner will be free to pursue their remedy in that behalf in accordance with law. 8. In the result, we do not find any illegality, material irregularity or jurisdictional error in the impugned order. The revision petition, being devoid of merits, is hereby dismissed. The Petitioner is, however, granted four weeks' time to comply with the order passed by the District Forum as affirmed by the State commission. In the face of the facts and circumstances, there shall be ho order as to costs.   Revision petition dismissed.