Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:
(1) Being aggrieved by the judgement and award passed by Consumer Disputes Redressal Forum, Mumbai Suburban District, Bandra (East), Mumbai, in Consumer Complaint No.187/2005, Mr.Mahendra Kamdar V/s. Cozy India & Anr., decided on 19.03.2009, the original Opposite Party No.1 – Cozy India has filed this appeal challenging the award passed by the District Forum. By the impugned award, while allowing the complaint partly, the Opposite Party Nos.1 and 2 jointly and severally were directed to pay a sum of `12,914/- with interest @12% per annum from 05.01.2003 till realization of the entire amount and also directed to pay to the Complainant `10,000/- as compensation and `1,000/- towards costs.
(2) Facts to the extent material to decide this appeal may be stated as under:
Opposite Party No.1 is the Company who is an authorized/approved dealer in manufacturing of the side cars and attaching the same to the scooters. Opposite Party No.1 is the only company authorized by R.T.O. to register the same with R.T.O. Opposite Party No.2 is the owner/partner/sales executive of Opposite Party No.1. It was the case of the Complainant in Forum below that he was suffering from backache and was unable to travel by bus and he was advised to travel by a private vehicle with strong shock absorbers. So, the Complainant approached Opposite Party and explained his backache problem to Opposite Party No.2 and expressed desire to buy a scooter with strong shock absorber. Opposite Party suggested him to buy a scooter along with side car. Complainant was reluctant to buy a scooter along with side car due to extra cost and registration hassles. Opposite Party No.2 promised that it would be his responsibility to get the side car registered. Then Complainant purchased scooter along with side car worth `44,525/- by paying the same to Opposite Party No.2 inclusive of registration tax and service charges. However, when delivery of the scooter was made to the Complainant, Opposite Party informed him that documentary work of registration was not done. On 05.01.2003 he took delivery of the scooter with side car and document of registration, but, Complainant noticed that there was no registration of side car. Copy of delivery challan and incomplete book of certificate of registration was attached with the complaint. According to Complainant even after five weeks since the purchase of scooter Opposite Party Nos.1 and 2 failed and neglected to register the side car with the R.T.O. Opposite Party No.2 handed over registration form which was rejected by R.T.O. He was informed that side car could not be registered because, for attachment of the side car prototype approval was required from Testing Authority. He was further informed that on 20th August, 2002, the Government has amended section 52 of Motor Vehicle Act, that no alteration or fitting of side car is permitted without obtaining prototype approval from the agencies. In other words, Complainant pleaded that, it means that side car should be registered on the same date of the manufacturing, otherwise it could not be plied on the roads. According to Complainant, Opposite Party did not bother to get registered his side car with R.T.O. He therefore sent registered notice to Opposite Party on 28.03.2005. On 30.03.2005 Opposite Party gave evasive reply to his notice and therefore, he filed complaint in the Forum below for claiming amount for `44,525/- with interest @24% per annum. He also prayed that Opposite Party should be directed to pay compensation of `2,50,000/- towards mental agony and inconvenience caused and `5,000/- towards costs of the complaint.
(3) Opposite Parties filed written statement and denied the allegations made by the Complainant. According to Opposite Parties, Opposite Party No.1 is dealing with manufacturing of side cars and attach the same to the scooters. Opposite Party No.2 admitted that it is owner of Opposite Party No.1 Company. According to Opposite Parties, at the time of booking of the side car they had informed Complainant that side car was not being registered, however, in spite of the same Complainant insisted for the side car and willingly purchased the same. Opposite Parties pleaded that registration of side car is the responsibility of R.T.O. They had not given any assurance about registration of the side car to the Complainant as he alleged. They further pleaded that Complainant did not disclose that he was suffering from backache. Opposite Parties denied that that they had given false representation to the Complainant. They pleaded that Complainant purchased scooter from their sister concern M/s.Nisha Sales and Services and booked side car with Opposite Party after knowing the fact that side car cannot be registered. Opposite Party supplied the scooter in good condition and Complainant was using the same for 2½ years. They insisted that at the time of booking Complainant was clearly told that side car was not being registered. Opposite Parties pleaded that scooter along with side car was delivered to the Complainant on 05.01.2001 and after 2½ years complaint has been filed making false allegations. They pleaded that Complainant is still using the side car in his daily life and therefore, they are not guilty of deficiency in service and they prayed that complaint should be dismissed with costs.
(4) Upon hearing Ld. Counsel for the Complainant and Opposite Party Forum below held that Opposite Party had collected `44,525/- from Complainant which included registration tax of `1,500/- and service charges of `300/- of side car. The Forum below held that side car could not be registered as per amendment and still Opposite Party had sold side car assuring that they would procure the registration from R.T.O. They had taken `300/- registration service charges and side car tax of R.T.O. of `1,500/- and on 05.01.2003 Opposite Party delivered the scooter without registration of side car which according to Forum below amounted to deficiency in service. Hence, Forum below allowed the complaint and directed Opposite Party to refund amount of `12,914/- which Complainant paid towards price of side car and also directed to pay interest @12% per annum on the said amount from 05.01.2003 till actual realization of entire amount. Forum below also directed Opposite Parties jointly and severally pay amount of `10,000/- towards compensation and `1,000/- as costs, as such original Opposite Parties have filed this appeal.
(5) We heard submissions of Mr.Anand Patwardhan, Advocate for the Appellants and Mr.Baliram Kamble, Advocate for the Respondent.
(6) We are finding that Section 52 of Motor Vehicle Act was amended by the Government of India w.e.f. 20.08.2002 and as per amended provision no alteration or fitting of side car is permitted without obtaining prototype approval from the testing authorities or testing agencies. So, with the amendment under section 52 of the Motor Vehicle Act it is clear that side car cannot be fitted or attached to the scooter after purchase of scooter and side car separately as was done by the Respondent herein. It has to be manufactured at the time of manufacturing in the manufacturing plant of the scooter and thus, after manufacturing of scooter along with side car, the same model should get approved from testing authorities of Government of India. Since, there was no such authority, the Complainant should not have insisted to install or affix side car to his scooter which he had purchased from sister concern of the Appellant (M/s.Nisha Sales & Services). When registration of side car was not permissible separately without the prototype approval from the testing authorities by the manufacturer himself there is no question of registration of side car by the R.T.O. R.T.O. cannot register vehicle of this nature which is not permissible in law. Complainant was knowing that there was amended provision under section 52 of the Motor Vehicle Act and amended provision prohibited to affix side car by any dealer and it also prohibited registration of side car by R.T.O. So, Complainant’s insistence to the Appellant to affix side car to the scooter purchased by him was contrary to the law in force or contrary to the provisions of Motor Vehicle Act. As such Complainant cannot be heard to say that Appellant failed to procure registration certificate for the side car. What is not permissible in law cannot be insisted by the Respondent, but he insisted and prevailed upon original Opposite Parties to install side car to his scooter which he purchased from Nisha Sales and Services and paid `12,914/- as a price of the side car along with R.T.O. registration service charges and Registration tax. But then he was knowing that under section 52 of the Motor Vehicles Act no such scooter with the side car could be registered or could be produced without taking prototype approval from the testing authorities of Government of India. In our view, when the affixing of side car was not permissible, when registration of side was not permissible in view of the amended Section 52 of the Motor Vehicles Act, the Complainant’s insistence to affix side car to his scooter itself was illegal, since he insisted Appellant to affix the same he did so and gave delivery of the scooter with the side car to the Complainant on 05.01.2003. He enjoyed the scooter with side car for 2½ years and then filed consumer complaint only when he found that on 12.01.2004 Opposite Party had informed that R.T.O. had rejected registration of side car. Till then he had no grievance that there was deficiency in service of any kind. In the circumstances, we are of the view that getting affixed side car to his scooter was per se illegal act on the part of the Respondent. Respondent was knowing change in law in terms of amendment in Section 52 of the Motor Vehicles Act by the Government of India. He ignored the fact that side car could not be registered by R.T.O. and still he went for getting scooter with side car affixed and purchased the same from Appellant. He committed illegality, so he cannot get benefit of his own wrong. In our view, the Appellant is not guilty of deficiency in service of any kind. What is pertinent to note is the fact that without directing Respondent to give back side car, the Forum below simply awarded `12,914/- which is the price he had paid to the Appellant for affixing side car and for procuring registration from the R.T.O. It is also pertinent to note that the side Car and scooter was purchased by the Complainant on 05.01.2003, whereas he filed consumer complaint on 16.05.2005. So, consumer complaint as filed by the Complainant was absolutely barred by limitation and since it was not accompanied with condonation of delay application, in our view, Forum below eared in law in ignoring the limitation involved in this case while allowing the complaint partly. In any view of the matter, we are finding that award passed by the Forum below is appearing to be erroneous and bad in law and therefore, by allowing this appeal, the said judgement and award will have to be quashed and set aside. Hence, we pass the following order:
O R D E R
(i) Appeal is allowed.
(ii) Impugned judgement and award passed in Consumer Complaint No.187/2005 is quashed and set aside. Complaint stands dismissed.
(iii) Parties are left to bear their own costs.
(iv) Inform the parties accordingly.
