MRS. NEENA SANDHU, MEMBER

1.    This is an appeal filed by the OP No.3 (M/s Prolab Computers), received on transfer from Haryana State Consumer Disputes Redressal Commission, against order dated 18.12.2002 passed by District Consumer Disputes Redressal Forum, Faridabad (for short hereinafter to be referred as District Forum) passed in complaint case No. 323 of 3.8.1998.

2.       Briefly stated that the facts of the case are that the complainant paid full and final price of Rs.25,499/- in advance for the purchase of complete PCL Computer System with all equipments through cheque/DD No.6282202 dated 22.11.1996 through their authorized dealer at Faridabad – respondent No.3 and the respondent duly acknowledged the receipt bearing No. 3770 dated 23.12.1996 to the complainant and assured the complainant for the delivery of computer in a few days but the complainant did not get the delivery of the same. After fortnight, the complainant personally met the respective officers of respondents No.2 and 3 and they assured the complainant for the delivery of the computer very soon by the month of January, 1997. In the end of January, 1997, the complainant did not take the delivery of the computer system and he visited the office of respondent No.2 asking for the delivery immediately as full payment had already made by the complainant to the respondents but the respondents stated that the delivery shall be made very soon. It was further alleged by the complainant that the OPs vide letter dated 10.2.1997 conveyed their regret for the delay being caused in the delivery of the computer and however the respondent in the same letter provided the additional warranty of two years in case the machine was delivered after 15.3.1997 in addition to the original warranty period, besides this the OPs also undertook to give the interest @ 24% p.a. to the complainant on the amount of Rs.25,499/-. Despite the personal visits and letters sent by the complainant to the OPs, the OPs did not deliver the computer system to the complainant. The complainant sent a legal notice through their counsel on 4.6.1998 to the OPs for the delivery of Mellannium PC(s) machine/computer. The OPs inspite of having received the legal notice not only refused to make the delivery of the computer system but also refused to refund the amount deposited by the appellant. This conduct of OPs amount to deficiency in service. Hence, the complaint was filed.

3.    OPs No.1 and 2 did not appear, despite service. Hence, they were proceeded against exparte.

4.       Reply was filed by OP No.3 and pleaded that the demand draft bearing No. 628202 dated 22.11.1996 was in the name of respondent No.1 i.e. M/s Pertech Computer Limited and this fact had been concealed by the complainant. It is further pleaded that respondent No.3 had only to collect the money on behalf of OPs No.1 and 2 whereas OP No.3 was nothing to do with the alleged supply of the computer system. Since the OP No.3 did not accept the money from the complainant, therefore, there was no contract for supply of computer system between the complainant and OP No.3.

5.    The parties led their evidence in support of their contentions.

6.    The learned District Forum allowed the complaint and directed the OPs jointly and severally to refund the money of the complainant i.e. Rs.25,499/- along with interest @ 12% p.a. w.e.f. 22.11.1996 till its realization. The OPs are further jointly and severally ordered to pay Rs.5,000/- on account of mental agony and harassment and Rs.1,000/- as costs of litigation.

7.       Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the OP (M/s Prolab Computers Limited) and submitted that the learned District Forum while holding that the appellant is equally responsible for the acts and conduct, which he has done either himself as on behalf of respondents No.2 and 3 has failed to take into notice that the appellant is not part of the organization. He is only instrumental in collecting the amount from the customer by way of draft and that too in the name of the company and forwarding it to the company. The concept of agency has wrongly been interpreted. The appellant is not a party to contract. The contract if any was between respondents No. 1, 2 and 3. The consideration was paid to respondents No. 2 and 3. The appellant is only to receive the demand draft from the customer and forward it to the respondents No.2 and 3. This is an admitted fact that the appellant received the draft from the respondent No.1 and immediately forwarded it to the respondents No.2 and 3 who duly acknowledged the same vide receipt No. 3770 branch Code 02 and so far as the duties of appellant are concerned, he is no where defaulter. The learned District Forum failed to take into account this aspect of the matter and also made the appellant liable. The entire correspondence is between complainant and respondents No.2 and 3. The appellant is no where in picture. Hence, it is prayed that the impugned award may kindly be modified by exempting the appellant from the payment of computer system.

8.    We have heard Ms.Rahish P.Dudeja, Advocate for the appellant but none has appeared on behalf of respondents.

9.    It is an admitted that the respondent No.1/complainant has paid an amount of Rs.25,499/- by way of demand draft on 22.11.1996 in the name of respondent No.2 for the purchase of complete PCL Computer System which was duly forwarded to respondents No.1 and 2 i.e. manufacturer. The appellant assured the respondent No.1/complainant that the computer will be delivered within a reasonable time but the respondents No.2 and 3 failed to deliver the computer and the learned District Forum has passed order with the direction that the OPs are jointly and severally liable to refund the money of the complainant i.e. Rs.25,499/- along with interest @ 12% p.a. w.e.f. 22.11.1996 till its realization. The OPs are further jointly and severally ordered to pay Rs.5,000/- on account of mental agony and harassment and Rs.1,000/- as costs of litigation.

10.   At the time of arguments, the learned counsel for the appellant placed on record the judgment passed by the Hon’ble National Commission in the case titled as Navbharat Motor Agency, Solapur Vs. Kaushikbhai Ishwarbhai Patel & Ors. 2006(1) CPC 231 in which

Section 2(1)(g) & 21(b) – Dealers liability – car was booked with petitioner dealer with a deposit of Rs.20,000/-. The amount was sent to the manufacturer – dealer cannot be jointly held liable for deficiency in service – it was the manufacturer who failed to deliver the vehicle despite payment – petitioner held entitled to withdraw Rs.15,000/- deposited with the State Commission –respondent/complainant is at liberty to proceed against manufacturer.

The facts of the present case in hand are almost similar in nature. There is no specific allegation of deficiency in service on the part of appellant except that being an authorized dealer of respondents No.2 and 3. The payment was made to the appellant by the complainant which was duly forwarded to the manufacturer. Although the appellant is an authorized dealer of manufacturer but appellant is not delinquent to perform his duty. In this view of the matter, we do not find any deficiency in service on the part of appellant as the dealer is not liable with the acts of manufacturer. Therefore, the appellant is not liable to pay the amount jointly and severally as awarded by the learned District Forum. It is only manufacturer who was not able to deliver the computer in time due to his own fault. Our view is supported by the judgment passed by Hon’ble National Commission titled as Maruti Udyog Limited Vs. Arjun Singh & Anr. III(2009) CPJ 22 (NC) in which

Consumer Protection Act, 1986 – Section 21(b) – Motor Vehicles-delivery delayed-Forum directed manufacturer to deliver vehicle, failing which refund of money with interest directed – Once vehicle delivered by manufacturer, no further liability could be fastened on manufacturer – As per limits of authority, relationship between manufacturer and dealer, on principal to principal basis – manufacturer not liable for acts of dealer – order holding manufacturer liable to pay interest and realize it from dealer, set aside in revision – dealer alone held liable to pay interest and compensation.”

Therefore, we exempt the appellant i.e. dealer from the liability fastened by the learned District Forum against him as prayed by him. Co`nsequently, the appeal is allowed without any order as to costs and the impugned order qua the appellant is set aside.

11.       Copies of this order be sent to the parties, free of charge.