KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 413/2010

JUDGMENT  DATED:26-03-2011

PRESENT:

SMT. VALSALA SARANGADHARAN              : MEMBER

SHRI. M.V. VISWANATHAN                                      :   JUDICIAL MEMBER

SHRI.M.K. ABDULLA SONA                                      : MEMBER

C.S. Pradeep Kumar,

T.C.14/2134, Meads Lane,                                : APPELLANT

Palayam, TVPM-34.

(By Adv:Sri.G.S.Kalkura)

          Vs.

1.      M/s T.V.S.Automobiles Ltd.,

National Highway,

Kaloor, Cochin-17.

2.      M/s TVS Ltd.,

Neeramankara,

Kaimanam.P,O, TVPM.

(By Adv: Smt.S.Laila)                                : RESPONDENTS

3.      M/s Fiat India Ltd., (IND AUTO),

LBS Marg,

Kurla, Mumbai-400 070.

                                              JUDGMENT

SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER

The appellant was the complainant and respondents were the opposite parties in OP.232/01 on the file of CDRF, Thiruvananthapuram.  The aforesaid complaint was filed alleging deficiency of service on the part of opposite parties in their failure to refund the excise duty of Rs.70,000/- due to the complainant.  Thereby the complainant claimed refund of Rs.70,000/- with 18% interest from the date of purchase of the vehicle to the date of realization and compensation of Rs.1.lakh for mental agony suffered by the complainant and also for deficiency of service and unfair trade practice on the part of opposite parties.  The complainant also claimed cost of Rs.5000/- from the opposite parties.

2.      The opposite parties 1 and 2 filed written version denying the deficiency of service.  They contended that the application for refund of excise duty with the necessary papers which were submitted by the complainant were forwarded to the 3^rd opposite party/ manufacturer and there was no deficiency of service on the part of the opposite parties 1 and 2.  Thus, they prayed for dismissal of the complaint filed against them.

3.      The 3^rd opposite party entered appearance and filed written version denying the alleged deficiency of service.  It was also contended that the complainant is not a consumer and the dispute involved is not a consumer dispute.  It was further contended that the complainant was bound to approach the concerned authority to get refund of excise duty and that the refund of excise duty was denied by the authority due to the delay in submitting the application.  Thus, the 3^rd opposite party also prayed for dismissal of the complaint.

4.      Before the Forum below, Exts.P1 to P7 documents were marked on the side of the complainant.  No oral evidence was adduced by the complainant.  The opposite parties did not adduce any evidence in the matter.  On an appreciation of the documentary evidence on record, the Forum below passed the order dated:25/11/2002 allowing the complaint and directing the opposite parties to pay the complainant Rs.70,000/- with interest at the rate of 12.5% per annum from the date of complaint (29/5/2001) till the date of realization with cost of Rs.500/-.

5.      Aggrieved by the said order dated:25/11/2002, the opposite parties filed Appeal Nos.850/02 and 01/03 before the State Consumer Disputes Redressal Commission, Thiruvananthapuram.  Thus, State Commission vide order dated:3/10/2007 in Appeal Nos.850/02 & 01/03 remanded the matter by setting aside the impugned order dated:25/11/2002 passed by the Forum below in OP.232/01.  It was also directed to consider the issue as to whether the complainant/consumer was bound to approach the authority directly for refund of the excise duty.

6.      After the aforesaid remand order, the Forum below considered the issues involved in OP.232/01.  The complainant filed proof affidavit in support of his claim.  P1 to P7 documents were also marked on his side.  The opposite parties did not file proof affidavit or documents.  On an appreciation of the documentary evidence on record, the Forum below passed the impugned order dated:15/3/2010 in OP.232/01 directing the 3^rd opposite party to pay Rs.70,000/- as compensation with cost of Rs.5000/-.  Opposite parties 1 and 2 are exonerated from the liability to pay compensation.  The complainant was allowed default interest at the rate of 9% per annum in the event the 3^rd opposite party failed to pay the compensation and cost within two months from the date of receipt of the impugned order.  The complainant is not satisfied with the compensation awarded by the Forum below.  Dissatisfied with the compensation awarded, the present appeal is filed by the complainant therein.

7.      We heard the counsel for the appellant/complainant and respondents/opposite parties 1 to 3.  The learned counsel for the appellant/complainant argued for awarding interest on the compensation amount of Rs.70,000/- from the date of purchase of the vehicle till the date of realization.  He claimed interest at the rate of 18% per annum.  He also relied on the earlier order awarding compensation by the Forum below vide order dated:25/11/2002.  It was submitted that in the earlier order interest at the rate of 14.5% from the date of complaint was ordered.  He further submitted that the complainant had also claimed compensation of Rs.50,000/- for the mental agony suffered by the complainant and a further sum of Rs.50,000/- for deficiency of service and unfair trade practice on the part of the opposite parties.  Thus, the appellant/complainant prayed for awarding compensation and interest.  On the other hand, the learned counsel for respondents 1 and 2/opposite parties 1 and 2 submitted that no liability has been fastened on opposite parties 1 and 2 and so they are not aggrieved by the impugned order passed by the Forum below.  The learned counsel for the 3^rd respondent/3^rd opposite party submitted that the excise duty of Rs.7,000/- was infact remitted by the 3^rd opposite party to the Central Excise Department and that the 3^rd opposite party/3^rd respondent is not benefited by the payment of Rs.70,000/- towards the excise duty.  Thus, the 3^rd respondent prayed for dismissal of the present appeal.

8.      There is no dispute that the appellant/complainant was entitled to get refund of excise duty of Rs.70,000/-.  It is also an admitted fact that the appellant/complainant submitted the necessary application and the documents to get refund of the excide duty of Rs.70,000/- which was collected by the opposite parties from the complainant.  The eligibility and the entitlement of refund of Rs.70,000/- by way of refund of excise duty is upheld.  The aforesaid finding of the Forum below has not been challenged by the opposite parties 1 to 3 especially the 3^rd respondent/3^rd opposite party.  It has also been held by the Forum below that 3^rd opposite party was negligent in submitting the refund application with necessary papers to the concerned authority in the Excise Department.  The aforesaid negligent or lapse on the part of the 3^rd opposite party would amount to deficiency of service.  It has also been established that due to the said deficiency of service on the part of the 3^rd opposite party, the complainant/consumer suffered financial loss of Rs.70,000/-.  The P2 document would show that the complainant had availed financial assistance for the purchase of the subject vehicle which was purchased from the opposite parties.  Thus, it can be seen that the appellant/complainant was bound to pay interest on the amount availed by him as loan under P2 hire purchase agreement.  So, the claim for interest on the compensation amount of rs.70,000/- can be considered as a just and reasonable claim.  It is to be noted that if refund of Rs.70,000/- by way of excise duty, was obtained in time,  the complainant could have obtained interest on the said sum of Rs.70,000/-.  Because of the deficiency of service on the part of the 3^rd opposite party, the complainant/consumer lost the interest on the said sum of Rs.70,000/-.  So, the Forum below cannot be justified in not awarding interest on the said compensation amount of Rs.70,000/-.  The Forum below ought to have awarded reasonable rate of interest on the said compensation amount of Rs.70,000/- at least from the date of complaint in OP.232/01.  This State Commission is of the view that the appellant/complainant was entitled to get interest at the rate of 9% per annum from the date of the complaint (29/5/2001) till the date of realization.  Therefore, the impugned order dated:15/3/2010 passed by CDRF, Thiruvananthapuram in OP.232/01 is liable to be modified to the extent as indicated above.  In all other respects, the impugned order passed by the Forum below can be upheld.

          In the result the appeal is allowed and thereby the impugned order dated:15/3/2010 passed by CDRF, Thiruvananthapuram in OP.232/01 is modified.  The 3^rd respondent/3^rd opposite party is also directed to pay interest at the rate of 9% per annum on the compensation amount of Rs.70,000/- from the date of complaint (29/5/2001) till the date of realization.  In all other respects, the impugned order passed by the Forum below is confirmed.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs.

M.V. VISWANATHAN:   JUDICIAL MEMBER

VALSALA SARANGADHARAN: MEMBER

M.K. ABDULLA SONA : MEMBER

VL.