DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Miscellaneous Application No : 07/2014
Date of Institution : 22.07.2014
Date of Decision : 20.07.2015
Himmat Singh son of Shri Hardev Singh, R/o Village Balloke, Tehsil & Distt. Barnala.
…Complainant/respondent
Versus
Hemant Goyal Motors, Rajpura Road, Patiala.
Hemant Goyal Motors, Bajakhanna Road, Barnala both through Mr. Gulshan Kumar, Manager (HR), Patiala.
…applicants
Application for recalling of the order dated 21.5.2012, in view of the judgment dated 1.7.2014 passed by the Ld. National Consumer Commission, New Delhi in R.P No. 2564 of 2014.
Present: Sh. S.R. Bansal Counsel for applicants.
Sh. G.P. Singh Counsel for respondent/complainant.
Quorum.-
1. Shri S.K. Goel : President.
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(BY SHRI S.K. GOEL PRESIDENT):
This is an application for recalling the order dated 21.5.2012 in view of the judgment dated 1.7.2014 passed by the Hon’ble National Consumer Commission, New Delhi in Revision Petition No. 2564 of 2014 moved by the applicants/Hemant Goyal Motors, Rajpura Road Patiala and Hemant Goyal Motors, Barnala.
2. In the application the applicants averred that they are authorized dealer of Tata Motors and are having their Head Office at Rajpura Road, Patiala and Barnala Branch has since been closed. It is further averred that the present application is filed through Mr. Gulshan Kumar Manager (HR) Patiala, for recalling the order dated 21.5.2012, passed by this Forum, by playing fraud by the complainant/respondent upon the applicants.
3. It is further averred that the complainant/respondent had filed a consumer complainant before this Forum against the applicants/opposite parties and this complaint was allowed vide order dated 21.5.2012 with the direction to refund the amount of Rs. 5,24,253/- alongwith interest and cost. Feeling aggrieved from the said order, an appeal was filed before the Hon’ble State Commission, Punjab, Chandigarh on 29.6.2012 and the same was dismissed on 15.5.2014, by upholding the order of this Forum. Thereafter, the applicants filed revision petition on 23.6.2014 and the same was disposed of with a direction to this Forum to recall the order dated 21.5.2012 on the complaint filed by the complainant by playing fraud upon the applicants on the basis of R.C and Job card dated 16.8.2011 showing the ownership of Dalbir Singh son of Hamir Singh, Village Dhandoli Kalan bearing registration No. PB13X-5480 of Fiat Punto Car, by Goyal Motors, Patiala, issued by Licensing Authority, Sangrur. However, due to investigation by the applicants, it was come to know from the DTO Sangrur about the fate of the said Registration Certificate and after depositing the requisite fee of Rs. 50/- and for issuance of copy of the RC Book No. PB13X-5480, which is in the name of Major Singh son of Shri Budh Singh, V&PO Mehla being the Motorcycle of Bajaj Auto and not in the name of Dalbir Singh, as alleged by the complainant/respondent.
4. It is further averred that by observing the documents filed before the Hon’ble National Commission about the exact R.C. of PB13X-5480, which is in the name of Major Singh and not in the name of Dalbir Singh and while relying upon the version of the complainant made in the complaint, which was totally wrong, illegal and against the actual position procured and obtained a favorable order from this Forum against the applicants, hence this intervention of this Forum is being sought by recalling the order dated 21.5.2012 in view of the judgment of the Hon’ble National Commission, dated 1.7.2014. Therefore, the order may kindly be recalled on the basis of forged certificate of Registration in the name of Dalbir Singh. Therefore, it is prayed that the application of recalling of the order dated 21.5.2012, passed by this Forum may kindly be allowed and an appropriate order may kindly be passed.
5. Upon notice of this application complainant/respondent appeared and filed written reply and has taken preliminary objections. Firstly, the alleged Registration Certificate pertaining to Motorcycle produced by the applicants has no resemblance with the Chassis Number, Engine Number and Type of Vehicle in question (Fiat Punto Car), whereas the Registration Certificate pertaining to Fiat Punto Car in the name of Dalvir Singh and the record of Dada Motors, Ludhiana, bears the same Chassis Number and Engine Number, which are of the Car of complainant/respondent in his possession. Therefore, the present application is wholly misconceived, groundless and unsustainable in law.
6. Secondly, from the very beginning, it is the case of the complainant that the applicants sold him the old vehicle alleging it to be a brand new vehicle after charging the full price of vehicle. It is also the stand of the applicants/opposite parties in their written version dated 7.10.2011 that the vehicle in question was given to the complainant as old, which is crystal clear from Para No. 2 and 3 of the preliminary objections of their written version dated 7.10.2011. Again it was the same stand of the applicants/opposite parties before the Hon’ble State Commission in proceedings of First Appeal No. 880 of 2012 that the complainant was given the old Car, which is crystal clear in Para 4 and 12 of the order dated 15.5.2014, passed by the Hon’ble State Commission, Punjab, Chandigarh. But now the applicants/opposite parties have surprisingly changed their aforesaid previous stand in the present application and took the contradictory and frivolous plea and alleged that the fraud has been committed by the complainant upon them on the basis of R.C and Job Card showing the ownership of Dalvir Singh. In fact, the aforesaid R.C pertaining to Dalvir Singh was not produced by the complainant before this Forum. Rather, the same has been produced by the applicants before the Hon’ble National Commission itself.
7. Thirdly, the Hon’ble National Commission dismissed the Revision Petition No. 2564 of 2014 as withdrawn, filed by the applicants, whereas the Hon’ble State Commission upheld the order dated 21.5.2012, passed by this Forum vide order dated 15.5.2014 in which the matter in issue has already been decided by the Hon’ble State Commission itself. In such situation, the present application is likely to be dismissed, being sheer abuse of process of law.
8. Fourthly, the present application is baseless and is flagrant abuse of the process of law which has been filed by the applicants merely to harass the complainant/respondent in order to defeat his right to recover the amount mentioned in order dated 21.5.2012.
9. On merits, it is pleaded that the applicants are authorized dealers of Tata Motors and having their head office at Rajpura Road, Patiala, but it is wrong and denied that their Barnala Branch has since been closed. It is further denied that the complaint got the order dated 21.5.2012, by playing any fraud upon the applicants. They have also denied that the Hon'ble National Commission has disposed of the said Revision Petition with any direction to this Forum to recall the order dated 21.5.2012. Rather, the Hon'ble National Commission has dismissed the aforesaid Revision Petition as withdrawn. It is further averred that the applicants are trying to mislead this Forum. It is denied that the complainant has committed any fraud, as alleged by the applicants, rather the applicants committed fraud with the complainant/respondent. Moreover, the Hon'ble National Commission has not passed any judgment/order to recall the order dated 21.5.2012. But the applicants are trying to mislead this Forum. Hence, it is prayed that the application may kindly be dismissed with cost.
10. In support of their application, applicants tendered in evidence affidavit of Raj Kumar Ex.MA/1, affidavit of Gulshan Kumar Ex.MA/2, copy of certificate of registration Ex.MA/3, copy of receipt Ex.MA/4, copy of RC Ex.MA/5 and closed their evidence.
11. On the other hand, in order to rebut the case of applicants, complainant/respondent tendered in evidence his own affidavit Ex.O.P1, copy of written statement dated 7.10.2011 Ex.O.P2, copy of order dated 21.5.2012 Ex.O.P3, copy of order dated 15.5.2014 Ex.O.P4 and closed his evidence.
12. The first point in controversy before us is, whether this Forum is competent to recall or review its order.
13. Admittedly, the complainant/respondent filed a consumer complaint against the applicants/opposite parties alleging that the applicants sold him an old vehicle after charging the full price of the new vehicle before this Forum and the complaint was allowed on 21.5.2012 directing the applicants/opposite parties to refund the amount of Rs. 5,24,253/- alongwith interest @ 9% per annum from the date of receiving and also awarded compensation. Against this order the applicants/opposite parties filed first appeal before the Hon'ble State Commission, Punjab, Chandigarh, and the Hon'ble State Commission, Punjab on merits dismissed the appeal vide order dated 15.5.2014. Against the said order the applicants/opposite parties filed revision petition and sought the recalling of the original order dated 21.5.2012 passed by this Forum. However, the Hon'ble National Commission dismissed the revision petition as withdrawn with liberty to file an application before this Forum. Infact, the applicants in the revision petition raised a new plea that a fraud has been committed by the respondent/complainant upon them. However, the perusal of the order passed by this Forum dated 21.5.2012 as well as order passed by the Hon'ble State Commission, Punjab, Chandigarh, dated 15.5.2014, there is nothing to indicate that the applicants have ever raised plea of fraud, played by the complainant/respondent. It is also relevant to refer here that the Hon'ble National Commission, vide its order dated 1.7.2014 dismissed the revision petition as withdrawn and the order dated 15.5.2014 passed by the Hon'ble State Commission, Punjab, Chandigarh, upholding the order dated 21.5.2012 has not been set aside by the Hon'ble National Commission or by any Court till now.
14. In Rajeev Hitendra Pathak & Others Vs Achyut Kashinath Karekar & Another 2011 (4) CLT 527 the main question which came up before the Full Bench of the Hon’ble Supreme Court was whether District Consumer Forums and the State Commissions have the powers to set aside their own orders. In that case the appellants relied upon the judgment in the case of Jyotsana Arvind Kumar Shah and others Vs Bombay Hospital Trust 1999 (4) SCC 325 in which the Hon’ble Supreme Court had held that the State Commission did not have the power to review or recall its ex parte order.
15. In 2013 (2) Civil Court Cases 209 (S.C.) Supreme Court of India in case titled Lucknow Development Authority Vs Shyam Kapoor it was observed which is as under:-
“On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised”.
16. Even otherwise the alleged registration certificate Ex.MA/5 pertaining to Motorcycle in favour of Major Singh placed on record by the applicants/opposite parties before the Hon'ble National Commission has different chassis number and engine number and type than that of vehicle in question (Fiat Punto Car). Whereas, the registration certificate Ex.MA/3 pertaining to Fiat Pnuto Car in the name of Dalbir Singh tallies with the record of Dada Motors Ludhiana with the same chassis number and engine number and this Car is in possession of the complainant/respondent. Ex.MA/3 further shows the registration date as 17.9.2010 with chassis No. 7017901 and engine No. 96913. However, the complainant/respondent has purchased the said Car on 28.1.2011 from the applicants/opposite parties and the copy of invoice was prepared by the applicants/opposite parties. Moreover, it is the case of the complainant/respondent that the applicants/opposite parties sold the old vehicle alleging to be a brand new vehicle after charging the full price. The stand taken by the complainant/respondent in the complaint was accepted by this Forum vide order dated 21.5.2012 and the Hon'ble State Commission, Punjab, Chandigarh, vide its order dated 15.5.2014 had uphold the order of this Forum qua the delivery of second hand/old Car in stead of the new one. Thus, the matter in issue has already been decided by the Hon'ble State Commission, Punjab, Chandigarh itself. It is also relevant to mention here that the copy of purchase bill of the Car is in the possession of the complainant/respondent and in case the complainant/respondent got prepared any Registration Certificate, then the said original bill could have been deposited at the office of the concerned DTO and therefore, the question of preparation of the said registration certificate Ex.MA/3 by the complainant/respondent does not arise at all. Therefore, we are of the opinion that the matter has already been decided by the Hon'ble State Commission, Punjab, Chandigarh, and the applicants/opposite parties have miserably failed to prove any fraud, played by the complainant/respondent.
17. In view of the above discussion, there is no merit in the miscellaneous application for recalling the order dated 21.5.2012 of this Forum and the same is dismissed. However, there is no order as to cost. Copy of this order be supplied to the parties free of costs. The file after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
20th Day of July, 2015.
(S.K. Goel)
President.
(Karnail Singh)
Member.
(Vandna Sidhu)
Member.
