Heard learned counsel for both sides.

2.      Both the appeals arise out of common impugned order passed by the learned District Forum,  Rayagada in Consumer  Complaint No. 252 of 2011. Therefore, both the appeals were heard together. This common order shall govern the result of both the appeals.

3.      These appeals are filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum. First Appeal No. 263 of 2013 has been filed by OP No.3 whereas First Appeal No. 193 of 2013 has been filed by OP No.1.

4.   The factual matrix leading to the case of the complainant is that the complainant has purchased a PIAGGIO APE Truck for total value of Rs.2,55,900/- from OP No.1 having warranty of 18 months. OP No.3 has financed the complainant for Rs.1,90,000/- on 15.3.2010. It is alleged inter alia that the complainant has paid the initial amount of Rs.60,000/- and balance amount was given as finance as stated above. It is stated that complainant has only paid finance dues of Rs.58,000/- on different instalments but the vehicle gave defect continuously for which he was not able to ply the same. Complainant allegedly to have made objections to the OPs and the vehicle was handed over to OP No.1 which is still lying with OP No.1. Since OPs. 1 and 2 demanding amount without returning the vehicle and OP No.3 has not taken step to repair the vehicle in spite of request of the complainant, the complainant sustained financial loss, as such the complaint  was filed.

5.      OP No.1 was set ex parte. OP No.2 filed written version stating that the entire allegations against him are false and they have never received any complaint with regard to the improper performance of the vehicle in question. OP No.3 filed the written version stating that except receipt of Rs.58,000/- up to 21.6.2011, no payment has been received from the complainant. It is stated by OP No.3 that there is already dues of Rs.2,50,619/- to be payable by the complainant.

5.      Learned District Forum after hearing both parties passed the following impugned order:-

                             “xxx   xxx   xxx

In the result, the complaint petition is allowed on contest against the OP 1 and dismissed against the OPs No. 2 & 3.

The OP No.1 is ordered to refund the balance EMI (Equal monthly instalment) outstanding amounts to the OP No.3 on receipt of intimation from the OP No.3 after through calculation without DPS. The OP No.1 is further ordered to pay Rs.5,000/- towards litigation expenses to the complainant.

The OP No.3 is ordered to sell the above repossession vehicle PIAGGIO APE Truck  Registration No. OR-18-B-6992 in the available market rate and adjust/appropriate the same in the loan dues and can realize the balance EMI (Equal monthly instalment) finance amount without delayed payment charges from the OP No.1 through due process.

The OP No.3 is ordered to pay Rs.5,000/- towards the development cost of the Forum in favour of the President, Dist. Consumer Forum, Rayagada.

The OP No. 1 & 3 are ordered to make comply the aforesaid order within 60 days from the date of receipt of this order failing which the OP No.3 is at liberty to take further proceeding u/s 25 & 27 of the C.P.Act against the OP No.1 serve a copy of the order on the complainant and OPs.”

6.      Learned counsel for the appellant in FA No. 263 of 2013 submitted that the learned District Forum has passed the impugned order although there is no prayer in the complaint petition as such by the complainant. So he submitted that the learned District Forum has committed error in law by not evaluating the materials on record produced by both the parties. According to him, the vehicle was repossessed due to non-payment of the instalments by the complainant. But the learned District Forum instead of directing the complainant to pay the  rest of the loan amount has directed to sell the vehicle and adjust the appropriate loan amount without payment of delay payment charges. This direction of the learned District Forum amounts to rewriting of agreement which is not permissible under law. Learned District Forum ought to have directed the complainant to pay the entire loan amount including delay payment charges so as to close the loan amount. However, he submitted that the impugned order being illegal and improper should be set aside by allowing the appeal.

7.      Learned counsel for the appellant in FA No. 193 of 2013 submitted that they have not received any summon and without giving opportunity to them, they have been set ex parte. Learned District Forum has committed error in law by directing OP No.1 to refund the balance EMIs outstanding to OP No.3 without understanding the fact of the case. He also submitted that if opportunity would have been given to place his grievance, the matter could have been disposed of on merit. So he submitted to remand the matter for denovo hearing.

8.      Considered the submission of learned counsel for respective parties and perused the DFR including the impugned order.

9.      No doubt the onus lies on the complainant to prove the deficiency of service on the part of the OPs.

10.    It is admitted fact that complainant has purchased the vehicle from the OP No.1 and OP No.3 has financed for purchasing the vehicle. It is also admitted fact that the complainant has only paid Rs.58,000/- but has not paid rest of the instalments.

11.    The impugned order does not show as to why the complainant did not pay the entire loan amount even if the vehicle is lying with OP No.1. After making necessary payment for repairing, it was the duty of the complainant to take the vehicle for plying same and later on claimed the necessary relief against OP No.1. The impugned order also does not show on what basis OP No.1 was directed to refund the balance EMIs to OP No.3 when there is no prayer in the complaint petition as such. It is stetted in law that the relief has to be granted by the court in accordance with the prayer made by the parties. When OP No.1 was the only repairer, the question of payment of EMI by him as ordered by the learned District Forum is really beyond imagination. That apart, OP No.1 has not been heard in this matter. There is nothing found from the record that he has been served with notice.

12.    OP No.3 has never claimed in the written version to allow him to sell the vehicle after repossession. Any direction as stated in the impugned order to OP No.3 amounts to rewriting of the contract which is not the job of the concerned District Forum. Learned District Forum has also asked OP No.3 to pay Rs.5,000/- towards development cost to the District Forum and this also beyond the powers conferred u/s 14 of the Act.

13.    In view of aforesaid discussion, this Commission is of the view that the learned District Forum has exceeded its powers and functions conferred under the Act and as such the impugned order is liable to be set aside.

14.    In the result, the appeal should be allowed and the matter is required to be heard afresh by giving opportunity to OP No.1 to file written version and evidence. Although it is a matter of 2011, this Commission is inclined to remand the matter for such palpably wrong impugned order. Therefore, the appeal is allowed in remanding the matter with a direction to the learned District Forum to allow OP No.1 to file written version and both parties to adduce evidence if any and dispose of the matter within 60 days from the date of this order in accordance with law. Both parties are directed to down load this order from the Confonet or Website of this Commission and produce same before the learned District Forum on 23.8.2021 to receive further instruction from it.

          Statutory amount deposited if any be refunded to the appellant with interest accrued thereon, if any on proper identification.

          DFR be sent back forthwith.

          Supply free copy of this order to the respective parties.