These revision petitions arise out of an order dated 16.07.2010 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (to be referred as ‘the State Commission’) in First Appeal No. 16/2005. By the impugned order, the State Commission has allowed the appeal and set aside the order dated 10.11.2004 passed by the District Consumer Forum, Panipat by which order, the District forum had dismissed the complaint filed by the complainant – M/s Meera & Co. Ltd. seeking replacement of a Volvo Penta D.G. Set of 375 KVA or in the alternative to refund the price of the said D.G. set with interest on the allegation that the D.G. set supplied to them by the opposite parties was defective and defects could not be rectified despite attempts made by the opposite parties. The complaint was resisted by the opposite parties, inter alia raising primary objection about the maintainability of the complaint on the premises that the complainant was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986, besides denying any defect in the engine in question or deficiency in service on their part in regard to the rectification of the alleged defects. The District Forum, it appears, considered the said objection in regard to the maintainability of the complaint and going by its own interpretation of the Supreme Court decisions in the case of Laxmi Engineering Works vs. P.S.G. Industrial Institute [(1995) 3 Supreme Court Cases 583] and in some other cases took the view that the complainant was not a consumer because the warranty period was over. Aggrieved by the decision of the District Forum, the complainant filed appeal before the State Commission and the State Commission, going by the decision of this Commission in the case of M/s HCL Limited vs. Reji K. Varghese, 2001 (1) CPC 474 and on its own interpretation held that the complaint was maintainable and also returned the finding that there were defects in the engine and consequently, allowed the complaint with a direction to the opposite parties to supply a new Volvo Penta D.G. set of 375 KVA to the complainants or to refund the price of generating set alongwith interest @ 10% per annum from the date of the order of State Commission till its realization. Aggrieved by the said order, the opposite parties – M/s Volvo India Pvt. Ltd., the manufacturer of the engine, D.G. set and the supplier / distributor of the engine – M/s Meera & Co. Ltd. have filed the present revision petitions. 2. We have heard Mr. Shekhar Gupta & Mr. A.R. Takkar, learned counsel for the petitioners as also Mr. Aashish & Mr. Sandeep Bajaj, learned counsel representing the complainants / respondents in these petitions and have considered their submissions. One of the grounds on which the order passed by the State Commission is sought to be assailed is that the State Commission while upsetting the order of the District Forum and holding that the complaint could be entertained on the strength of the decision of the M/s HCL Limited vs. Reji K. Varghese (supra) ought to have remanded back the matter to the District Forum for deciding the complaint on merits rather than stepping into the shoes of the District Forum itself for deciding the complaint on merits. In view of this, the prayer of the petitioner is that the matter may be remanded back for re-consideration of the complaint by the first forum, i.e., the District Forum in accordance with law. On the other hand, contention of the respondent / complainant is that the District Forum had made certain observations in para no.1 of its order which will tantamount to definite finding on the merits of the complaint also in regard to the defect / deficiency in the D.G. set purchased by the complainant. We have noted this contention simply to be rejected because the said observation of the District Forum is nothing but just a passing reference while recording the facts of the case. Had it been not so, the District Forum would have certainly recorded a finding to the above effect or given its mind that although the complaint fails due to its view in regard to maintainability of the complaint, the complainant had a good case. Even that would not have been possible for the District Forum to do because once it had decided the primary objection in regard to the maintainability of complaint and had answered the same in negative, there was no occasion nor it was called upon to consider the complaint on merits. In our view, having regard to the entirety of the facts and circumstances, the order of the State Commission rendering a finding on merits as could at best have been done by first forum has led to miscarriage of justice in this case because the valuable right of appeal against the order which could have been passed by the first ever forum, i.e. the District Forum has been foreclosed. 3. For the above stated reasons, we partly allow the revision petitions and remand back the complaint to the concerned District Forum to decide the same afresh in accordance with the law, preferably within a period of three months from the date of appearance of parties before it, which we fix as 21.03.2011. The District Forum shall proceed to decide the complaint on merits assuming that the question of maintainability of the complaint has been finally and rightly answered by the State Commission. |
