Advocate Shrikant Patil for the complainant
Advocate Vijay Limaye for Opponent No.1
Opponent No.2 exparte
Shri. J. P. Singh, A/R for Opponent No.3
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date- 2nd April, 2014
This complaint is filed by consumer against the service provider and Manufacturer as well as Excise Department for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is resident of Ahmednagar. Opponent No.1 is the Manufacturer of the car doing its business at Mumbai. Opponent No.2 is the Dealer of the Opponent No.1 and Opponent No.3 is representing Excise Department. It is the case of the complainant that, Opponent No.2 is the agent of the Opponent No.1. Complainant was intending to purchase Diesel Padmini Car in the month of January 1998. He had obtained quotation from the Opponent No.2. On the basis of said quotation he had obtained loan of Rs.1,95,000/- from Ahmednagar Shahar Sahakari Bank Ltd. by depositing 1/4th marginal amount. Demand Draft of Rs.2,79,800/- was given to the Opponent No.2 as price of the said car. He had also paid Rs.17,810/- as excise price for the said car. The delivery of the car was given to the complainant by the Opponent No.2. Opponent No.2 had taken excise duty amount of Rs.28,000/-At the time of delivery of the car, Opponent No.2 promised to refund the excise duty and the said promise was given on the receipt issued by the Opponent No.2. At the relevant time there was notification of the Government that, if the private vehicle is converted into tourist taxi, then the owner of the vehicle was entitled for certain amount of refund from the excise duty. After registration of the vehicle as taxi, complainant had submitted copies of registration certificate and tax certificate to the Opponent No.2 by registered A.D. But that envelop was not claimed by the Opponent No.2, hence returned to the complainant. At that time, there was a strike and labour problem in the workshop of the Opponent No.2. Hence, Opponent No.2 could not forward the proposal of refund of excise duty. Complainant had also written letter to the Opponent No.1 on 7/7/1998 and claimed difference amount of excise duty. But the Opponent No.1 did not pay any heed for the said request. Opponent No.1 informed the complainant that, Opponent No.2 is liable to pay the said difference. When complainant approached to the Opponent No.2 for refund of the amount, he did not refund the same. Hence, notice was issued by the complainant to the Opponents. Thereafter, complainant has filed present complaint.
[2] Initially complainant has filed complaint No.340/1998 before the Ahmednagar District Consumer Disputes Redressal Forum for refund of excise duty of Rs.28,000/-. That complaint was decided on 25/6/1999 and on the point of jurisdiction, complaint was returned to the complainant for presenting the same before proper Forum. Against the said Order, complainant has preferred Appeal before the Hon’ble Consumer Disputes Redressal Commission, Maharashtra State, Mumbai. But the Hon’ble Consumer Disputes Redressal Commission, Maharashtra State, Mumbai pleased to dismiss the Appeal. Hence, complainant has filed this complaint before the present Forum as per the direction given by the Hon’ble Consumer Disputes Redressal Commission, Maharashtra State, Mumbai.
[3] Opponent No.3 was subsequently added as a necessary party in the present proceeding as he is bound to refund the excise duty. Complainant has claimed refund of Rs.28,000/- along with interest @ 18% p.a. from 27/3/1998 till realization. He has also claimed Rs.500/- as notice charges. Complainant has also prayed for compensation of Rs.10,000/- on the ground of mental and physical sufferings and cost of the complaint.
[4] Opponent No.2 though duly served remained absent. Hence, complaint is proceeded exparte against him.
[5] Opponent Nos. 1 and 3 resisted the claim by filing written versions separately. It is the case of the Opponent No.1 that, there is no privity of contract between the complainant and the Opponent No.1. The relations between the complainant and the Opponent No.1 were not as consumer and service provider or trader. Complainant had purchased vehicle from the Opponent No.2. He had not submitted the proposal within prescribed period. The proposal was not received by the Opponent No.1. Complainant himself is guilty for not getting refund of excise duty. Opponent No.1 has not caused any deficiency in service and complaint is liable to be dismissed.
[6] It is the case of the Opponent No.3 that, the excise duty was paid to the Mumbai office. Hence, Opponent No.3 is not necessary party in the present proceeding. It has no concern with the transaction between the parties. There is no question of deficiency in service on the part of the Opponent No.3 and the said party is wrongly made in the present proceeding. It has also prayed for dismissal of the complaint.
[7] After considering the pleadings of both parties, scrutinizing the documentary evidence, hearing the argument of both parties, following points arise for the determination of the Forum. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainant has established that Opponent Nos. 1 to 3 have caused deficiency in service by not refunding excise duty to the complainant ? | In the affirmative |
2 | What order ? | Complaint is partly allowed. |
Reasons-
As to the Point Nos. 1 and 2-
[8] Undisputed facts in the present proceeding are that, the complainant has purchased car from the Opponent No.2 who was the dealer of the Opponent No.1 at the relevant time. There is no dispute between the parties that at the relevant time there was Government Notification and the owner of the car was entitled for refund of excise amount, if the car is converted into tourist taxi. It is the case of the Opponent No.1 that, it is a manufacturing company and is paying excise duty at the moment when the car is manufactured. In order to get refund of excise duty from the Excise Department, the owner has to submit proposal for refund of excise duty. It is not disputed by the Opponent No.1 that, Opponent No.2 was the dealer of the Opponent No.1. It is also not in much dispute that, the complainant has purchased the car from the Opponent No.2 by paying entire consideration including excise duty. According to the Opponent No.1 there is no privity of contract between himself and the complainant as complainant had purchased the car from the Opponent No.2. It is significant to note that, the Opponent No.2 had sold out the car which was manufactured by the Opponent No.1. Hence, legitimate inference can be drawn that, the complainant had purchased the car which was manufactured by the Opponent No.1 and there were relations between the parties as consumer and service provider as well as trader. Opponent No.1 cannot pass buck by saying that, there was no privity of contract between complainant and themselves. The learned Advocate for the Complainant argued before this Forum that, Opponent No.2 who was the authorized dealer of the Opponent No.1 had agreed and given in writing on the bill that, he is responsible for refund of excise duty on conversion of private car into tourist taxi. The learned Advocate for the complainant also argued that, as per the principle laid down in section 226 of Contract Act, 1872, principal is liable for the act of agent. Section 226 of the Contract Act, 1872 is as follows-
“226. Enforcement and consequences of agent’s
contracts-
Contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner, and will have the same legal consequences, as if the contracts had been entered into and the acts done by the principal in person.”
[9] Principally Opponent No.1 has not disputed that, the complainant is entitled for refund of excise duty. But according to him, the proposal was not submitted within time by the complainant. Hence, he is not entitled for refund of excise duty. It is the opinion of this Forum that, the Opponent No.1 is also responsible for non payment of excise duty, as complainant had informed this fact to the Opponent No.1 immediately when the Opponent No.2 did not give any response to the complainant.
[10] According to the Opponent No.3, he is wrongly joined in the present proceeding as the excise duty was paid to the Mumbai Office and Pune Office has no concern with refund of excise. It is significant to note that, as per the provisions of the Consumer Protection Act, 1986, the Forum has the jurisdiction to entertain the complaint when there is branch of any of office. Then it is expected that, branch office of Pune has to collect instruction from Mumbai office with whom the excise duty of the vehicle in question was deposited. In this circumstances, it is the opinion of the Forum that, Opponent Nos. 1 to 3 are jointly and severally liable for refund of excise duty as well as compensation on the ground of mental and physical sufferings and cost of the litigation.
In the result, this Forum answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponent Nos. 1 to 3 have caused deficiency in service by not refunding excise duty to the complainant.
3. Opponent Nos. 1 to 3 are jointly and severally directed to pay Rs.28,000/- [Rupees Twenty Eight Thousand only] to the complainant along with interest @ 6% p.a. from the date of filing of complaint till its realization within six weeks from the date of receipt of copy of order.
4. Opponent Nos. 1 to 3 are jointly and severally directed to pay Rs.10,000/- towards compensation for mental and physical sufferings and cost of the litigation within six weeks from the date of receipt of copy of order.
5. Both parties are directed to collect the copies of set which are provided for the Hon’ble Member within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 02/04/2014
