BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 968/2006 against C.C 104/2005, Dist. Forum, Nellore
Between:
Nirmala Agency
Rep. by its Proprietor
Narasimha Reddy
Trunk Road, Nellore *** Appellant/
O.P. No. 1.
And
1) Dr. D. Radha
D/o. D.C. Narayana Rao
Age: 61 years,
R/o. 16-1213,
Kasturi Devi Nagar
Pogatota, Nellore. *** Respondent/
Complainant
2) M/s. Akai Consumer Electronics (I) Ltd.
Plot No 5, II Floor
New Vasavi Nagar,
Karkhana, Secunderabad.
3) The Managing Director
M/s. Akai Consumer Electronics (I) Ltd.
Plot No. 5, II Floor,
New Vasavi Nagar,
Karkhana, Secunderabad. *** Respondents/
O.P. No. 2 & 3
Counsel for the Appellant: M/s. T. C. Krishnan
Counsel for the Respondents: M/s. M. Venkatanarayana (R1)
M/s. A. Venkatesh (R2 & R3)
F.A. 1082/2006 against C.C 104/2005, Dist. Forum, Nellore
Between:
1) M/s. Akai Consumer Electronics (I) Ltd.
Plot No 5, II Floor
New Vasavi Nagar,
Karkhana, Secunderabad.
2) The Managing Director
M/s. Akai Consumer Electronics (I) Ltd.
Plot No. 5, II Floor,
New Vasavi Nagar,
Karkhana, Secunderabad. *** Appellants /
O.P. No. 2 & 3
And
1) Dr. D. Radha
D/o. D.C. Narayana Rao
Age: 61 years,
R/o. 16-1213,
Kasturi Devi Nagar
Pogatota, Nellore. *** Respondent/
Complainant
2) Nirmala Agency
Rep. by its Proprietor
Narasimha Reddy
Trunk Road, Nellore *** Respondent/
O.P. No. 1.
Counsel for the Appellants: M/s. A. Venkatesh
Counsel for the Respondents: M/s. M. Venkatanarayana (R1)
M/s. T. C. Krishnan (R2)
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SRI SYED ABDULLAH, MEMBER
WEDNESDAY, THIS THE FIRST DAY OF APRIL TWO THOUSAND NINE
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
Aggrieved by the order of the Dist. Forum directing to refund Rs. 30,000/- together with interest and costs, opposite party No. 1 preferred F.A. No. 968/2006 while opposite parties 2 & 3 preferred F.A. No. 1082/2006.
2) Since both appeals arise against the very same order, a common order being passed. The parties are described as arrayed in the complaint for felicity of expression.
3) The case of the complainant in brief is that she had purchased a colour T.V. on 13.7.1998 from R1 a dealer manufactured by R2 and R3 under receipt Ex.A3 in a scheme named ‘Money Back Policy Scheme’ whereunder she had to pay Rs. 29,680/- and she would get Rs. 30,000/- after a period of 5 years and 11 months. R1 the dealer issued post dated cheque for encashing it after 13. 6. 2004. When she presented the cheque at Punjab National Bank, Nellore it was returned under endorsement that arrangement was discontinued and banks operation was closed vide cheque return memo Ex. A5. On that the complainant issued legal notice. R1 gave reply under Ex. A10, R2 and R3 though received notice did not give any reply. Therefore she filed the complaint for recovery of the amount besides compensation of Rs. 70,000/- and costs.
4) R1 the appellant in F.A. No. 968/2006 resisted the case. He admitted that the complainant purchased 29 inches Akai colour TV. He was only a dealer or agent of R2 & R3 which made paper advertisement that the purchaser of 29 inches Akai colour T.V. by paying Rs. 29.680/- would get back Rs. 30,000/- after 5 years and 11 months. Pursuant to the advertisement, the complainant purchased the TV and he in turn sent the bill to R2 which in turn issued a cheque Dt. 13.6.2004 for Rs. 30,000/-. He made it clear that he would not be responsible pertaining to the offer made by R2. In case the cheque was dishonored the complainant had to proceed against R2 & R3 u/s 138 of Negotiable Instruments Act or file a civil suit for recovery of the amount. He was not responsible for payment, he being an agent where Master were liable. Agents are not liable for the acts of the principal. There is no privity of contract, and therefore prayed for dismissal of the complaint.
5) R2 & R3 the appellants in F.A. 1082/2006 did not choose to contest, and therefore they were set-exparte.
6) The Dist. Forum after considering the uncontroverted evidence placed on record having opined that the opposite parties floated a scheme wherein they agreed to refund Rs. 30,000/- after expiry of the period mentioned in the bill for which the complainant had purchased a TV directed the appellants to pay Rs. 30,000/- with interest @ 9% p.a., from 13.6.2004 till the date of realization together with costs of Rs. 1,000/-.
7) Aggrieved by the said decision, R1 preferred F.A. 968/2006 contending that the Dist. Forum did not appreciate the facts in correct perspective. He was only a dealer and not a manufacturer to fix liability. M/s. Baron International Ltd. who issued the cheque have to be impleaded as a party. He was not liable for refund of the amount and it was R2 & R3 who floated such scheme, and therefore liable to pay the amount. He prayed for dismissal of the complaint against him.
8) R2 & R3 preferred F.A. No. 1082/2006 contending that it was not involved in the scheme. It was M/s. Baron International Ltd that floated the scheme and it was liable to pay the same.
9) The point that arises for consideration is whether the appellants are not liable to refund the amount?
10) It is an undisputed fact that R1 is a dealer for sale of Akai colour televisions manufactured by R2 & R3 evidenced from their own cash bill Ex. A2.
11) R1 dealer admits in his counter that the complainant had purchased the Akai colour TV. In the written arguments at para -4, he admitted the case set up by the complainant pertaining to the scheme wherein the manufacturer agreed to pay back the amount after 5 years and 11 months. For better appreciation, we excerpt the passage from para 4 of his written arguments.
“The first respondent submits that he is only a dealer or an agent of the 2nd respondent. The 2nd respondent made paper advertisement making offer to the public that if anybody purchases Akai TV 29 inches by paying Rs. 29,680/- and the customer will get back Rs. 30,000/- after 5 years 11 months. By attracting the offer made by the 2nd respondent, the complainant purchased the Akai TV from the first respondent and sent the bill to the 2nd respondent and in turn the 2nd respondent sent the cheque Dt. 13.6.2004 to the complainant. The first respondent informed to the complainant that he will not be responsible to the offer made by the 2nd respondent.”.
12) It may be stated that the cheque issued by R2 and handed over by R1 dealer was admittedly returned on the ground that said arrangement was discontinued and the banks operation closed vide cheque return memo Ex. A5.
13) If really R2 and R3 had no concern, R1 being its dealer could not have issued original cheque Ex. A4. Probably R2 & R3 are operating under the name M/s. Baron International Ltd., and therefore it issued the cheque on its behalf. The fact remains that when the complainant not only issued legal notice which it received under acknowledgement Ex. A9 it did not even give any reply, equally it did not contest when the complaint was filed against it alleging these facts. We need not reiterate that R2 & R3 did not refute the allegations made in the complaint and they deemed to have been admitted and they agreed for allowing the claim made against them. There is no reason why the appellants did not choose to file any evidence to refute the allegations made by the complainant admitted by R1 in this regard. No reason was assigned.
14) When R1 alleges that he was not liable, he was only an agent and the principal issued the cheque he cannot be mulcted with liability, we may state that when R1 had handed over the cheque belonging to R2 & R3 it had acted as an agent undertaking the responsibility of payment of amount and also confirming the genuineness of the transaction. There is no reason why, out of all, he should hand over the cheque to the complainant. Obviously, he made it clear that the cheque was issued on behalf of his principal and that the amount would be returned after the stipulated period. R2 & R3 could not controvert the averments made by the complainant by letting in evidence even by way of additional evidence in the appeal. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard.
15) In the result both the appeals are dismissed with costs computed at Rs. 2,000/- each. Time for compliance four weeks.
PRESIDENT MALE MEMBER
Dt. 01. 04. 2009.
*pnr
“UP LOAD – O.K.”
