13.9.10

Appellant through Mr. B.Prasad, Ld. Advocate and the Respondent through Mr. P.K.Basu, Ld. Advocate, are present.  Appellant pays cost of Rs. 500/- to the Respondent as per our order dt. 24.8.10, against which a receipt is filed.  The matter is taken up for hearing.  Heard both sides at length.  Judgement is passed as under :-

          This Appeal is directed against Order dt. 15.9.2003 passed by Calcutta District Forum, Unit-I in CDF/Case No. 414/2002.  The complaint was lodged upon allegation that the OP No. 1 was going to launch Montana Cars for which booking was invited by the OP No. 1 through the distributorship of the OP No. 3.  The complainant accordingly deposited a sum of Rs. 10,000/- only in cash for booking of the said car against Application No. 139013, Priority No. 00682, Dealer Code No. 0042, with the UCO Bank. Lindsey Street Branch, Kolkata.  An acknowledgement slip bearing number 139013 dt. 10.6.89 was issued to the complainant.  It was informed to the complainant through the aforesaid OP No. 1 that the car would be distributed to the successful customers in a draw to be taken amongst the list of applicants.  Ultimately the complainant was not informed of anything who was kept waiting for purchasing the said car for a long time and accordingly applied for refund of the deposited money due to non-availability of the car.  The said advance deposit of Rs. 10,000/- having not been refunded to the complainant the aforesaid complaint case was filed. 

The said complaint case upon contested hearing was disposed of by directing the Ops to pay the said sum of Rs. 10,000/- to the complainant within 30 days from the date of making of the order along with an interest @ 10% p.a. on the above sum beginning from the month of January, 1990 till payment.  The Ops were further directed to pay a sum of Rs. 5,000/- only as compensation for causing mental agonies and worries to the complainant and a further sum of Rs. 1,000/- by way of cost.  This order has been appealed against by the distributor alone being the OP No. 3 to the complaint case.

It is not in dispute that the aforesaid advance deposit was made in favour of the OP No. 1 namely M/s. Sipani Automobiles Ltd., the manufacturer of the aforesaid car, through the OP No. 3, who acted as a distributor for the said manufacturer.  It has been held by the Hon’ble National Commission in the case between M/s. Shah Distributors  (Auto Division) Calcutta Vs. Mr. Ashok Kumar Singh & Another that if the amount was payable directly to Sipani Automobiles Ltd. by way of Bank Draft, then Ashok Kumar Singh and Shah Distributors could not be liable for the same.  Hon’ble National Commission further in a decision reported in I (1995) CPJ 33 (NC) – Bharat Motor Vs. Ush Rani Samal & Another, held that the complainant having had paid the amount to the manufacturer by way of advance for  purchase of the car, the order for refund could have been passed only against the manufacturer, who was also a party before the District Forum as well as the appellate forum.  In view of the aforesaid decisions of the Hon’ble National Commission we are also of the view that the District Forum had acted illegally by directing refund of the aforesaid advance deposit of Rs. 10,000/- along with other decretal amounts to the complainant by the Ops jointly.  The impugned order is accordingly modified by directing the OP No. 1 to pay the aforesaid decretal amount to the complainant forthwith and peremptorily within a period of 30(thirty) days from this date.  The Appeal is thus disposed of.