BEFORE THE CIRCUIT BENCH A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT Hyderabad

F.A.NO.633 /2013  against  CC 180/2012  on the file of the District Consumer Forum II, Krishna at Vijayawada.

Between:

Mahindra & Mahindra Ltd

Rep. by its authorized signatory

Mahindra towers, Worli, Road No.13,

Mumbai – 400 018.                                               ..        Appellant/OP No.1

And

Konakanchi Uma Maheswara Rao,

S/o Narasaiah, Hindu, aged about 53 years,

R/o Muppalla village,

Chandrelapadu mandal,

Krishna District.   …                  Respondent/complainant

Mahindra & Mahindra Financial Services Ltd

Rep by its  authorized signatory

Office at Mahindra Towers

Worli road No. 13, Mumbai – 400 018.            .. Respondents/OP 2.

Counsel for the Appellant                             M/s M.V.R. SURESH  & Associates

Counsel for the Respondents              M/s.  N. Saida Rao for R-1

                                                          M/s. V. Mohan Srinivas for R-2

FA 1083/2013  against  CC 180/2012  on the file of the District Consumer Forum II, Krishna at Vijayawada.

Between:

Konakanchi Uma Maheswara Rao,

S/o Narasaiah, Hindu, aged about 53 years,

R/o Muppalla village,

Chandrelapadu mandal,

Krishna District.   …                                      .Appellant/complainant

And

1.   Mahindra & Mahindra Ltd

Rep. by its authorized signatory

Mahindra towers, Worli, Road No.13,

Mumbai – 400 018.                                    

2.   Mahindra & Mahindra Financial Services Ltd

Rep by its  authorized signatory

Office at Mahindra Towers

Worli road No. 13, Mumbai – 400 018.            .. Respondents/OPs

Counsel for the Appellant                             M/s.  N. Saida Rao

Counsel for the Respondents              M/s M.V.R. SURESH & Associates for R-1

                                                          M/s. V. Mohan Srinivas for R-2

QUORUM: 

SRI S. BHUJANGA RAO              .. HON’BLE MEMBER

AND

                   SRI  R. LAKSHMINARASIMHA RAO…….. HON’BLE MEMBER

           Thursday, the Fifteenth Day of May, 2014

                                      TWO THOUSAND FOURTEEN

Oral Order (As per Sri R. Lakshminarasimha Rao , Hon’ble Member)

                                                ***

1. Both appeals are directed against the same order passed by the District Forum in CC No. 180/2012 on 13.06.2013. The opposite party No. 1 has preferred appeal FA No. 633/2013 whereas the complainant has filed appeal. FA 1083/2013.  Therefore, both appeals are disposed of by common order. For the sake of convenience, the parties are referred to as arrayed in the complaint.

1. The factual matrix giving rise to filing of the appeals is that the complainant purchased Tractor of 275 D/BP Model in exchange of his used tractor from the opposite party no. 1.  He purchased the tractor on finance arranged by the second opposite party and the tractor was delivered to him at Nandigama show room of the opposite party no. 1.    The complainant received  the tractor to the show room with complaint of improper functioning of its engine and thereafter he filed Complaint, CC No. 20/2007 against the first opposite party and its dealer before the District Forum seeking for direction to them to deliver a new tractor and for payment of compensation.
2. The District Forum allowed the complaint on 09.07.2007 directing the opposite party no. 1 to replace the tractor with a new tractor.  The opposite party no. 1 carried the matter in appeal to this Commission by filing FA No. 1102/2007 which was disposed of on 29.10.2009 modifying the order of the District Forum and directing the opposite party no. 1 to return the tractor in a defect free condition and pay compensation of Rs.50,000/- to the complainant.

1. The complainant filed PP 88/2011 and the opposite party no. 1 deposited the compensation of Rs.52,000/- and expressed its inability to deliver the tractor in view  of seizure of the tractor effected  by the opposite party No. 2.  The District Forum directed on 21.02.2011 the OP. no. 1 to implement the order dt. 29.10.2009 passed by this Commission.

1. The complainant filed another PP No. 9/2012 wherein the first opposite party filed Memo stating that the tractor was repossessed by the opposite party no. 2 and it was ready to provide new tractor to the complainant.  The District Forum did not accept the memo filed by the opposite party no. 1 and rejected it on 21.5.2012.  The second opposite party initiated arbitration proceedings who passed the award on 25.4.2011.  The complainant stated to have intimated the second opposite party all the facts through the notice dt. 7.7.2007 that he got issued through his advocate.

1. The Arbitrator passed the award directing the complainant to pay a sum of Rs.5,66,563/- together with interest  @  3% p.m. from 5.11.2009 till payment and further interest   @ 18% P.A. from the date of award. 

1. Against the order dt. 21.5.2012, the opposite party no. 1 filed revision in RP No. 38/2012 and this Commission disposed of the revision permitting the opposite party no. 1 to hand over a new tractor to the complainant and  gave liberty to the complainant to seek redressal with respect to enhancement of compensation or proceed against the arbitration award  before an appropriate Forum. 

1. The complainant filed the present complaint in CC No. 180/2012 seeking for direction to the opposite party No. 1 to pay a sum of Rs.14,60,000/- towards compensation and for a direction to the OP No. 1 and 2 to pay compensation of Rs.3 lakhs towards mental agony which he stated to have undergone as also for a direction to the opposite party no. 1 to pay future damages @ Rs.2000/- per day till delivery of the vehicle. 

1. The District Forum allowed the complaint and awarded a sum of Rs.3,88,600/- with interest @ 9% pa thereon against the Opposite party no. 1. The District Forum allowed the complaint on the premise that the complainant and the dealer of the opposite party no. had knowledge by the month of June, 2007 that the second opposite party repossessed the vehicle from the dealer and the vehicle was not in possession of  the second opposite party.  The District Forum observed that the complainant and the OP. no.1 contributed to the cause for making the order of this Commission in executable for which the District Forum held that the complainant and the Opposite party no. 1 had to proportionately bear the brunt. 

1. The District Forum observed that the complainant could not get the tractor and make use of it owing to the fault on the part of the first opposite party for which the first opposite party has to pay compensation to the complainant and the District Forum proceeded to hold that the complainant was adamant in not taking delivery of the tractor even after receipt of intimation thereof, through telegram dt. 4.12.2006.

1. Feeling aggrieved by the order of the District Forum, the first opposite party has filed appeal FA 633/2013  contending that the complainant being dis-satisfied with the arbitration award filed the present complaint which is contrary to law and the District Forum has not considered the version of the Opposite party No. 1   in proper perspective and that the complainant with an ill intention has not come forward to take delivery of the tractor despite intimation sent vide telegram dt. 4.12.2006.  The opposite party no. 1 has contended that the District Forum came to wrong conclusion to award compensation at the rate of Rs.2,000/- per day  even when the same is not averred in CC No. 20/2007. It is contended that the opposite party no. 2 was not a party in CC 20/2007 and the OP no. 1 could not know the seizure and sale of the tractor made by the OP no. 2 and the complainant cannot claim any compensation after concealing the material facts before the District Forum and this Commission.

1. The opposite party no. 1 has further contended that the complainant has filed the present complaint to counter blast the arbitral award passed on 25.4.2011 for which he had remedy U/s. 34 of the Arbitration Act and not by filing a consumer complaint.  The appellant has contended that there is no privity of contract between the complainant and it in respect of the finance on the tractor or arbitration award passed therein.

1. Dis-satisfied with the award of Rs.3,08,600/-, the complainant has filed appeal contending that the District Forum ought to have held to that he did not have any tractor since October, 2006 and the District Forum had not taken into consideration of the expenditure he incurred for cultivation by engaging another tractor and he has contended that the loss of income ought to have been made from the date of the order in FA 1102/007 and that the OP no. 2 is sister concern of the OP. no.1.  Further the complainant has contended that the OP no 1 has to pay compensation for the entire period during which the tractor was not with him. 

1. Counsel for the complainant and the opposite party no.1 have

filed written arguments.

1. The points for consideration are,

1. whether the order of the District Forum is vitiated by mis-appreciation of facts or law
2. whether the complainant is entitled to for enhancement of compensation from Rs.3,88,600/-
3. to what relief ?

1. POINT NOs. 1 & 2 :  The facts beyond any dispute are that the complainant purchased tractor of 275 D/BP Model from the opposite party no. 1 on finance from the opposite party no. 2.  He filed the complaint in CC 20/2007 before the District Forum seeking for direction for replacement of the tractor.  The District Forum allowed the complaint and on appeal in FA No. 1102/2007, this Commission modified the order of the District Forum and permitted the opposite party no. 1 to repair the vehicle and return it to the complainant as also pay a sum of Rs.50,000/- towards compensation  to the complainant. 
2. It is settled position of law that the order once passed by  Consumer Forum  becomes final and it  has the tenor of decree that can be implemented.  During pendency of the complaint before the District Forum from the second opposite party herein which was not made party in CC 20/2007, repossessed the tractor during the time the vehicle was in possession of the dealer of the first opposite party which was also a party to the complaint in CC 20/2007. However, either the complainant or the opposite party no.1 and its dealer did not bring the matter pertaining to seizure of the vehicle by the financier, to the notice of the District Forum and this Commission.

1. The complainant has filed PP No. 88/2007 wherein the opposite party no. 1 deposited a sum of Rs.52,000/- and expressed its inability to repair the tractor as the vehicle was seized by the financier.  The District Forum directed the opposite party no. 1 to comply with the order of this Commission and it observed

“  in the result this appeal is allowed in paret modifying the order of the District Forum directing the appellant/opposite party no. 2 to return the tractor purchased by the complainant i.e., the vehicle which was registered on 19.10.2006 in a defect free condition to the complainant together with intrest of Rs.50,000/- and costs of Rs.2,000/-.  Accordingly the J.Dr. No. 2  herein deposited an amount of Rs.52,000/- before this Forum and contended that the tractor is not with it and that J.Dr. 2 is ready to repair the tractor if produced by the D.Hr/complainant but the order supra is contra and from the beginning the plea of the complainant/D.Hr is that the tractor was given to the J.Dr. 1 for repair who is the agent of 2^nd J.Dr herein and for that the acts of the J.Dr. 1 being agent, J.Dr. 2 is liable being principal so it is for the 2^nd J.Dr to say but the 2^nd J.Dr stated that for non-payment of instalments the financier sold it away etc., which is not tenable, why because,  without tractor the complainant/D.Hr can not pay the installments that to without utilizing the vehicle so, it is for the J.Dr. 2 herein to get the tractor from the J.Dr. 1 and then to repair since the tractor is not with the D.Hr/complainant there is no scope for D. Hr to bring or to produce before J.Dr.2, and so the J.Dr. 2 is directed to comply with the order of the Hon’ble State Commission with one month and no need to go beyond the order of appellate authority.”

1. Thereafter, the complainant has filed another PP, PP no.9/2012 and the first opposite party has filed memo seeking for closure of the PP in view of the part of the order of this Commission was being made impossible to comply with. The District Forum rejected the memo on 29.5.2012 holding that the offer to deliver new tractor is an attempt to escape the liability on the part of the first opposite party. The District Forum observed
   •  

The offer of the second opposite party to deliver new tractor at a first glance looks attractive but if the ordeal of the complainant is considered the offer looks like an attempt to escape liability.  The complainant purchased the vehicle on 19.10.2006 .  On the same day it was handed over  to the dealer on the ground of some defects. The dealer kept the vehicle with it till December and sent a telegram on 04.12.2006  to the complainant asking him to collect the vehicle as it was repaired.  The complainant did not collect the vehicle on the ground that he apprehended defects in the engine and asked for a new tractor. Thereafter the complaint was filed. The sale price was met with the value of the old tractor exchanged in a sum of Rs.65,000/- and finance given by Mahindra Finances Limited.  Now the fact is that since 19.10.2006 the complainant is without tractor and he was made to pay some installments and made to bear the burden of award referred to by him in the objections.  The liability under the award appears to be more than 8 lakhs rupees.  The interest itself on the award amount would be more than Rs.3,00,000/- at the rates mentioned in the objections filed by the complainant.  That apart the complainant not having the tractor with him had lost all benefits and advantages he could have had if the tractor was with him from 2006.  The ordeal would outweigh against the proposal made by the 2^nd opposite party with an offer to deliver new tractor”.

1. Challenging the order of the District Forum rejecting the memo filed by it the first opposite party filed revision in R P No. 38/2012 and this Commission allowed the revision holding that its order became final and in view of  the tractor being repossessed and sold by the financier during pendency of the appeal, this Commission considered submission of the counsel for the first opposite party that it was ready to deliver new tractor and in the back drop of acceptance of the learned counsel for the complainant  for the proposal, this Commission allowed the revision with the following observation:

“        the Arbitration award is not a subject matter or part of the prayer in the main CD and in the present case as the order in FA No. 1102/2007 has become final and to reiterate no appeal has been preferred by the complainant and the offer of a new tractor instead of a rectified  tractor has been accepted by the complainant and any grievance against the arbitration award cannot be adjudicated by this Commission and the complainant is at liberty to approach the appropriate Forum and seek redressal. It is also open to the complainant to approach appropriate Forum for enhancement of compensation, if so advised, as it is beyond the jurisdiction of this Commission to go beyond the decree passed in FA No. 1107/2007 “.

1. The complainant filed complaint CC No. 180/2012 seeking for direction to the opposite party No. 1  to pay compensation of Rs.14,60,000/-. The District Forum allowed the complaint on the premise that the complainant suffered loss on account of the failure of the first opposite party to get the tractor repaired in time and also the District Forum awarded compensation on the basis of liberty given to the complainant by this Commission for enhancement of compensation.  The District Forum held that the complainant was given new tractor on 14.11.2012 and calculated the liability of the complainant in terms of the arbitration award as under :

“

The amount due as per the award          Rs.5,66,563/-

Interest from 5.11.2009 to 29.09.2010

At the rate 3% per month                     Rs.1,83,566/-

Total                                                        Rs.7,50,129/-

Sale proceeds (-)                                Rs.2,20,000/-

Balance amount                                  Rs.5,30,129

Interest @ 18% pa from 29.9.2010

Till 14.11.2012                                    Rs.2,02,774/-

Arbitration costs                                  Rs.   10,000/-

Net total                                            Rs.7,42,903/-

1. The District Forum assessed the value of the new tractor at Rs.4 lakhs and deducted the amount of Rs.4 lakhs  from the aforesaid amount of Rs.7,42,903/- and assessed the loss occasioned to the complainant at Rs.3,42,903/-  and arrived at Rs.5,82,903/-                ( Rs.3,42,903 + Rs.2,40,000/-) awarded the balance of Rs.3,42,903/- towards the total loss and there from deducted 1/3^rd  of the amount on account of negligence of the complainant in not informing the District Forum and this Commission of the seizure and sale of the vehicle.

1. In so far as the compensation relating to the liberty given by this Commission for enhancement of compensation is concerned, the relief awarded to the extent is unsustainable.  The order having become final cannot be reviewed and the competent Forum for enhancement of compensation from the amount of Rs.50,000/- as awarded by this Commission is the National Commission and not the District Forum. To the extent, the relief granted is liable to be set aside.

1. Award of compensation is dependent on several factors.  The District Forum opined that the complainant did not inform it or this Commission about the seizure and sale of the vehicle and further the District Forum found negligence on the part of the complainant in not coming forward to take delivery of the vehicle even after  the dealer of the first opposite party informed him by sending telegram on 4.12.2006. 

1. The Hon’ble Supreme Court in “State of Gujarath vs Shantilal Mangaldas” AIR 1969 SC 634, held the compensation to mean” in ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation  is to be determined and given . If it were to be in terms of money along, the expression ‘paid’ would have been more appropriate”.

1. The Supreme Court  held that the compensation to be awarded is to be fair and reasonable.  In “Charan Singh vs Healing Touch Hospital and others” 2000 SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the  change it brings in the attitude of the service provider.

1. The Apex  Court held “While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge”. 

1. For the foregoing reasons and in the light of the ratio laid in the aforementioned decisions, we are of the considered view that a sum of Rs.2 lakhs is reasonable if awarded towards compensation to the complainant and accordingly reduce the amount of Rs.3,88,600/- to Rs.2 lakhs. The complainant has not shown any reason for enhancement of the compensation from the amount awarded by the District Forum  and thus the appeal filed by him  is liable to be dismissed.

1. In the result, the appeal FA 636/2013  is allowed modifying the order of the District Forum. The opposite party no. 1 is directed to pay to the complainant an amount of Rs. 2 lakhs and costs of Rs.4,000/-. Consequently, the appeal FA No. 1083/2013 is dismissed. There shall be no separate order as to costs in the appeals. Time for compliance four weeks.

                                DATED :  15.05.2014