Per Shri P.N.Kashalkar, Hon’ble Presiding Judicial Member:

We are disposing of these two appeals by common order since A.No.815/2008 has been filed by opp.party no.1 challenging the judgment passed by District Consumer Redressal Forum, Solapur in consumer complaint no.269/2007 disposed of on 30/04/2008, whereas A.no.760/2008 has been filed by org.opp.party no.2, who is dealer against judgment and award passed by District Consumer Redressal Forum, Solapur in consumer complaint no.269/2007 decided on 30/04/2008.  By the said award both these appellants have been  jointly and severally directed to pay to the complainant a sum of Rs.1,85,660/- with interest @17% p.a. and further directed jointly and severally to pay a sum of Rs. 1500/- towards the cost of proceedings and Rs.2,000/- was awarded towards mental agony.  If the order is not complied within 30 days then whole of the decreetal amount will carry interest @12% p.a.  As such, aggrieved by the said order org.opp.party no.1/M/s.Piaggio Vehicles Pvt. Ltd. has filed A.no.815/2008 and org.opp.party no.2 /Gandhi Motors has filed A.no.760/2008.  Since both the appeals are arising out of same judgment and award passed by District Consumer Redressal Forum, Solapur in consumer complaint no.269/2007, we are deciding these appeals by common order.  Facts to the extent material may be stated as under:-

          Respondent no.1 in both the appeals had filed consumer complaint no.05/2005 in District Consumer Redressal Forum, Solapur.  The grievance of the complainant is in respect of pick up van no.MH13/R6861 which he has purchased from opp.party no.2/Gandhi Motors, manufactured by opp.party no.1/ M/s.Piaggio Vehicles Pvt. Ltd.  He had purchased the vehicle on 16/03/2005 by paying an amount of Rs.1,85,660/-.  After the purchase during the warranty period the vehicle was getting hot every now and then and therefore, consumer complaint came to be filed by Mr.Balashaeb D.Chormale/complainant claiming that vehicle should be replaced and new vehicle should be given to him in place of old one and also some ancillary reliefs  were claimed by him.  The complaint was contested by filing written statement by both the parties.  According to opp.party nos. 1 and 2, the newly filed consumer complaint cannot be filed or permitted in law for simple reason that previous complaint was dismissed for non-prosecution against which appeal was filed in State commission and in appeal this Commission had given direction to the complainant to file restoration application seeking restoration of complaint from Forum itself.  The said restoration application was filed and it was allowed.  But instead of restoring the complaint, the Forum below allowed the application to restore the complaint, but in para 2 of the operative part of the order Forum below directed that complainant should filed afresh complaint within period of 30 days.  Therefore, it is the contention of the opp.party in the written statement that fresh complaint is not tenable in law.  Rest of the averments in the written statement need not be reproduced for the simple reason that we are required to allow the appeals on technical grounds itself. 

          On the basis of material produced on record, Forum below passed impugned order and aggrieved by the said award, these appeals came to be filed, one by dealer bearing A.no.760/2008 and another by manufacturer of the vehicle bearing A.no.815/2008. 

          At the stage of admission we heard Adv.Mr.N.G.Shivpuje for respondent no.1 in both the appeals.       Adv.Mr.Arun Mehta @ Adv.Mr.Patil for appellant in A.no.815/2008. Adv.Mr.Prakash Randive for M/s.Gandhi Motors in A.no.760/2008.

          We are finding that award passed by the Forum below is per se in law and cannot be allowed to sustain in law for the simple reason that Forum below erred in law in directing the complainant to file a fresh complaint within period of 30 days by allowing M.A.no. 01/2007.  But in operative part 1 of the said order, Forum below had allowed the said M.A.no.01/2007 restoring the complaint back to file.  It is pertinent to note that initially the complainant had filed consumer complaint no.05/2005.  It was filed on 24/10/2005.  That complaint came to be dismissed for non-prosecution by passing order dated 08/09/2006.  Against that order the complainant had filed A.no.2168/2006.  Said appeal was disposed of and this Commission in its order dated 11/12/2006 observed that complainant should have filed application for restoration before District Consumer Redressal Forum and  appeal was disposed of by giving an opportunity to the complainant to apply for restoration before District Consumer Redressal Forum.  Accordingly, complainant moved miscellaneous application no.01/2007 before District Consumer Redressal Forum, Solapur.  That application was opposed by opp.party nos. 1 and 2 by filing say and ultimately, Forum below passed an order dated 29/08/2007 and said miscellaneous application was allowed and in operative part no.2 of the said order liberty was given to file a complaint afresh within 30 days and therefore, it appears that complainant has filed a complaint afresh and thereafter, complaint no. 269/2007 was filed on 28/09/2007 and this complaint has been allowed by the District Consumer Redressal Forum  by its impugned judgment and award.

          Upon hearing the advocates for both the parties we are finding that impugned order passed by the Forum below in newly filed complaint no.269/2007 is per se bad in law and cannot be allowed to sustain in law.  What was required to be done by Forum below is that after allowing M.A.no.01/2007, it should have simply restored the complaint no.05/2005 back to file and that complaint should have been tried and dispose of by Forum below by passing award.  But instead of doing so the Forum below in M.A.no.01/2007 also passed second order that complainant was permitted to file fresh complaint from the date of receipt of the order by the complainant passed in M.A.no.01/2007.  It is this order which should have not passed by District Consumer Redressal Forum.  District Consumer Redressal Forum, Solapur should have simply allowed the restoration application and should have restored the complaint back to file and then should have disposed of the complaint on merits.  In stead of that District Consumer Redressal Forum had allowed M.A.no. 01/2007 and liberty has been given to the complainant to file afresh complaint and thereby gave second inning to the complainant and directed  to file a complaint afresh within period of 30 days by allowing restoration application and thus, District Consumer Redressal Forum  allowed the complainant to restore the complaint no.05/2005 back to file and that was the only prayer made in M.A.N .01/2007.  So, what was not asked by the complainant should have not been granted by the District Consumer Redressal Forum.  This tendency on the part of District Consumer Redressal Forum of granting the relief what is not asked for by the complainant is highly deprecatory.  In any view of the matter we are finding that judgment and award passed in complaint no.269/2007 is bad in law for this technical reason and therefore, we allow this appeal and quash and set aside the order passed on 30/04/2008 and  dismiss this complaint.  We direct District Consumer Redressal Forum, Solapur to continue the trial of complaint no.05/2005 because that complaint has been restored back to file allowing the application no.01/2007.  Hence, we pass the following order:-

                                                :-ORDER-:           

1.                 Appeal no.815/2008 is allowed.   The juddgment and award passed by

District Consumer Redressal Forum, Solapur in consumer complaint

no.269/2007  is quashed and set aside.  Said complaint stands

dismissed.

2.       A.no.760/2008 for the similar reasons is allowed. Impugned order passed by in C.no.269/2007 is quashed and set aside.  Complaint stands dismissed.

3.       However, we direct that Forum below shall take on file the original complaint no.5/2005 and said complaint should be decided on merits after hearing both the parties. 

4.       Both the parties are directed to appear Forum below on 18/11/2010.

5.       Amount deposited by both the appeals be refunded back to them forthwith. 

6.       Parties are left to bear their own costs.

7.       Copies of the order herein be furnished to the parties as per rules in force.