1. Heard Mr. Dileep Poolakkot, Advocate, for the petitioner. 2. This revision has been filed from the order of State Consumer Disputes Redressal Commission, West Bengal at Kolkata, dated 24.04.2019, passed in First Appeal No. 437 of 2015 (arising out of the order of District Consumer Disputes Redressal Forum, Uttar Dinajpur, at Raiganj, dated 24.02.2015, passed in Consumer Complaint No. 50 of 2013), whereby the complaint was allowed against the opposite parties. Force Motors Limited (the petitioner) was directed to return back the disputed vehicle to the complainant, in good and roadworthy condition or refund the cost of the vehicle i.e. Rs.522750/- with interest @ 9% per annum from the date of deposit of the amount with the authorised dealer M/s. Speed Motors till actual payment and the opposite parties were directed to pay Rs.40000/- for compensation and Rs.10000/- as cost of the litigation, within one month and the appeal of the petitioner was dismissed. 3. Ashutosh Saha (respondent-1) filed Consumer Complaint No. 50 of 2013, for directing the petitioner and respondent-2 to give back the disputed vehicle to the complainant or refund Rs.522750/- the cost of the vehicle and Rs.100000/- as compensation and cost of the litigation along with interest. 4. It has been stated in the complaint that the complainant was unemployed. In order earn his livelihood; he decided to purchase a vehicle for running it as taxi. He approached M/s. Speed Motors, who was an authorised dealer of Force Motors Limited and chose to purchase “Trax Cruiser” vehicle. The complainant gave Rs.200000/- on 22.03.2008 to the Proprietor of M/s. Speed Motors, out of which Rs.160000/- was utilized towards sale consideration and Rs.40000/- was taken as Registration, Road tax and Insurance charges. Total cost of the vehicle was Rs.522750/- as such Rs.362750/- was taken as loan from Shriram Transport Finance Company Ltd. through the dealer. The dealer told the complainant that about 7 days would be taken for registration of the vehicle etc. and asked him to come after 7 days for taking delivery of the vehicle. The complainant went to the showroom of M/s. Speed Motors after 7 days and thereafter again and again for taking possession of the vehicle but on one or other pretext, the vehicle was not given to him. After some time, the complainant came to know that his vehicle was being used by the dealer, in plying on the road through some one, when the complainant made query in this respect with the dealer then he misbehaved with him. The complainant informed about the matter to Force Motors Limited and requested to solve his problem but he also did not take any interest. On 05.04.2009, the dealer called the complainant to take delivery of the vehicle on 06.04.2009. On 06.04.2009, the complainant went to the showroom of the dealer along with a driver. Then the dealer asked him to take a Trax Cruiser vehicle, which was used and in damaged condition. The complainant denied taking delivery of that vehicle then he was threatened that in case, he would not take the vehicle then it would be deposited with the financer. Finding no other way, the complainant took the vehicle bearing Engine No. D-37000075, chassis No. T-57039733B06, Model-Trax Cruiser, registration No. WB-59 A-0029. When the complainant was returning back to his village along with the vehicle, it stopped on the road and after getting it repaired in a roadside garage, he came to his village. On the next day, the vehicle could not start. The complainant informed the dealer and asked to send some mechanic for repair but in spite of repeated request nothing was done. The complainant then filed Civil Suit No. 174 of 2009, for directing the opposite parties to repair/replace with new one of same model vehicle and direction to the financer not to demand EMI, till the vehicle is repaired/replaced. On service of summons, the opposite parties appeared before the Court. They assured the complainant to repair the vehicle. In pursuance of their assurance, they took possession of the vehicle for repairing but did not return it to him. The complainant found that although about 4 years have expired and there was no progress in civil suit, then he moved an application for withdrawal of the civil suit with liberty to file a consumer complaint. The application was allowed and suit was dismissed with liberty to file the consumer complaint. The complaint was filed on 18.07.2013. 5. M/s. Speed Motors (opposite party-1) filed his written reply on 04.12.2013. Force Motors Ltd. (opposite party-2) filed its written reply on 28.12.2013. The petitioner, in written reply, has stated that Civil Suit No. 174 of 2009, was withdrawn in terms of the compromise, as such, the present complaint was barred on the principle of res-judicata. In pursuance of the compromise, the petitioner took possession of the vehicle and got it repaired from his dealer M/s. USG Automobiles, Kolkata, free of cost. After repair, the complainant took back the vehicle and signed “Satisfaction Certificate” dated 04.04.2011. Total repair cost was Rs.53718/-. As the vehicle was within warrantee period, M/s. USG Automobiles, Kolkata raised the warrantee claim and debit note dated 22.02.2011, which was credited to him by the petitioner. The petitioner has fulfilled his obligation in the compromise. The petitioner was a manufacturer of the vehicle and M/s. Speed Motors was his authorised dealer on Principal–to-Principal basis. The petitioner did not have any privity of contract with the complainant, as such, he was not vicariously liable for any unfair trade practice committed by M/s. Speed Motors. The petitioner had his registered office at Mumbai-Pune Road, Akurdi, Pune-411035 and the District Forum had no territorial jurisdiction against him. Warrantee was limited for repairing only, which has been done and relief for replacement of the vehicle cannot be granted. Earlier on the complaint of the complainant, Service Engineer of the petitioner attended the vehicle on 11.05.2009. On inspection, he found that the complainant got the electrical parts repaired at some unauthorised workshop, which resulted in starting problem. None of the free/regular services, as provided under the warrantee, were availed from authorised service centre of the petitioner. Due to which the warrantee has been forfeited. The Financer was not impleaded as the party. 6. District Forum by judgement dated 24.02.2015, found that the complainant earlier filed civil suit, which was dismissed as withdrawn with liberty to file the present complaint, thereafter, the complaint was filed on 18.07.2013, as such, delay in filing the complaint has been condoned. Civil suit was dismissed as withdrawn with liberty to file the present complaint as such principle of res-judicata was not applicable. It was admitted to the petitioner that he had taken possession of the vehicle during pendency of Civil Suit and got it repaired from his dealer M/s. USG Automobiles, Kolkata, free of cost; after repair, the complainant took back the vehicle and signed “Satisfaction Certificate” dated 04.04.2011. But the “Satisfaction Certificate” dated 04.04.2011 did not bear the signature of the complainant as such it was not proved that the vehicle was returned to the complainant. On these findings, the complaint was allowed against the opposite parties. Force Motors Limited (the petitioner) was directed to return back the disputed vehicle to the complainant, in good and roadworthy condition or refund the value of the vehicle i.e. Rs.522750/- within one month. Thereafter, he would be liable to pay interest @ 9% per annum from the date of deposit of the amount with the authorised dealer M/s. Speed Motors till actual payment and both the opposite parties were directed to jointly pay Rs.40000/- for compensation and Rs.10000/- as cost of the litigation, within one month. 7. The petitioner filed First Appeal No. 437 of 2015, from the aforesaid order. At the time of hearing, no one appeared on behalf of the petitioner, before State Commission, as such the appeal was dismissed in default by order dated 11.04.2018. The petitioner challenged the aforesaid order in Revision Petition No. 1893 of 2018, which was allowed by order dated 15.12.2018, with cost of Rs.25000/-, order dated 11.04.2018, dismissing the appeal was set aside, the appeal was restored and directed to be heard on merit. After hearing the parties, State Commission, by judgment dated 29.04.2019, affirmed the findings of the District Forum and dismissed the appeal. Hence this revision has been filed. 8. We have considered the arguments of the counsel for the petitioner and examined the record. So far as delay in filing the complainant is concerned, District Forum found that the complainant had bona fidely filed Civil Suit No. 174 of 2009. During pendency of the suit, the petitioner took possession of the vehicle and gave assurance for its repair, but when he did not return the vehicle after repair, then the suit was withdrawn with liberty to file the present complaint, which was filed on 18.07.2013. As such finding sufficient ground, delay in filing the complainant was condoned. Condonation of delay is a matter of discretion. The revisional court cannot interfere with it. Other arguments that the present complaint was barred on the principle of res-judicata has no merit, inasmuch as the suit was dismissed with liberty to file the complaint and there was no decision on merit. 9. The petitioner, in his written reply, has admitted that he had taken possession of the vehicle during pendency of the civil suit for its repair and there is no dispute in this respect. Both the Foras concurrently held that“ Satisfaction Certificate” dated 04.04.2011 did not bear the signature of the complainant as such it was not proved that the vehicle was returned to the complainant. Concurrent finding of fact in this respect cannot be interfered by this Commission, in exercise of revisional jurisdiction as held by Supreme Court in Rubi (Chandra) Dutta Vs. United India Insurance Company Ltd., (2011) 11 SCC 269 and Loudres Society Suchanjali Girls Hostel Vs. H & R Johson (India) Ltd. (2016) 8 SCC 286. 10. In view of the admission of the petitioner that he had taken possession of the vehicle with assurance to repair it free of cost, the warrantee was forfeited or not, this issue has become irrelevant. The petitioner has taken possession of the vehicle with assurance to repair it as such he was liable to return it to the complainant after its repair. If the vehicle was not returned to the complainant, then direction of District Forum to return the repaired vehicle or to pay cost of the vehicle within one month does not suffer from any illegality. O R D E R In view of aforementioned discussions the revision has no merit and it is dismissed. |
