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Supreme Court of India · body

2005 DIGILAW 1427 (SC)

SIPANI AUTOMOBILES LTD. v. TIRATH RAM BATRA

2005-09-06

C.K.THAKKER, S.B.SINHA

body2005
ORDER 1. THIS APPEAL IS DIRECTED AGAINST AN ORDER DATED 15-4-1997 PASSED BY THE MONOPOLIES AND RESTRICTIVE TRADE PRACTICES COMMISSION, NEW DELHI ("THE COMMISSION" FOR SHORT) IN A REVIEW APPLICATION FILED IN CIVIL APPEAL NO. 61 OF 2003 WHEREBY AND WHERE UNDER THE APPELLANT HEREIN WAS DIRECTED TO PAY UNTO THE RESPONDENT A SUM OF RS 1,37,806 WITH INTEREST AT THE RATE OF 18% PER ANNUM WITH EFFECT FROM 2-2-1993, TILL THE DATE OF PAYMENT. THE COMMISSION ALSO AWARDED COSTS OF RS 2000 IN FAVOUR OF THE APPELLANT HEREIN. THE BASIC FACT OF THE MATTER IS NOT IN DISPUTE. 2. THE RESPONDENT HEREIN PURCHASED A MONTANA DIESEL CAR FROM THE APPELLANT. HE FILED AN APPLICATION BEFORE THE COMMISSION PURPORTED TO BE UNDER SECTION 12-B OF THE MONOPOLIES AND RESTRICTIVE TRADE PRACTICES ACT (THE MRTP ACT) ALLEGING INTER ALIA THEREIN THAT THE SAID VEHICLE HAD BEEN GIVING TROUBLE. BY AN ORDER DATED 7-2-1994, THE MRTP COMMISSION, WHILE HEARING THE APPLICATION OF THE RESPONDENT ALONG WITH OTHER COMPENSATION APPLICATIONS, PASSED AN ORDER AWARDING A SUM OF RS 10,000 BY WAY OF COMPENSATION WITH INTEREST AT THE RATE OF 18% PER ANNUM AND COSTS OF RS 1000 EACH. THEREAFTER, THE RESPONDENT HEREIN FILED A REVIEW APPLICATION IN TERMS OF SECTION 13(2) OF THE MRTP ACT BEFORE THE COMMISSION PRAYING FOR WITHDRAWAL OF THE SAID ORDER CONTENDING THAT HE SHOULD HAVE BEEN AWARDED A SUM OF RS 1,37,806, NAMELY, THE TOTAL AMOUNT OF CONSIDERATION FOR THE SAID CAR AS WELL AS THE COSTS INCURRED TOWARDS ITS REPAIRS. UPON ENTERTAINING THE SAID APPLICATION THE COMMISSION FRAMED THE FOLLOWING ISSUES FOR ITS E CONSIDERATION: 1. WHETHER THE RESPONDENT IS OR HAS BEEN INDULGING IN UNFAIR TRADE PRACTICES AS ALLEGED IN THE COMPENSATION APPLICATION? 2. WHETHER THE APPLICANT HAS SUFFERED ANY LOSS OR INJURY AS A RESULT OF UNFAIR TRADE PRACTICES AND IF SO, THE AMOUNT OF COMPENSATION TO WHICH HE MAY BE ENTITLED TO? 3. IT IS NOT IN DISPUTE THAT THE RESPONDENT HEREIN BY WAY OF EVIDENCE AFFIRMED AN AFFIDAVIT IN SUPPORT OF HIS CLAIM BUT NO EVIDENCE WAS ADDUCED ON BEHALF OF THE APPELLANT HEREIN. BY REASON OF THE IMPUGNED ORDER, AS NOTICED HEREINBEFORE, THE COMMISSION AWARDED A SUM OF RS 1,37,806 WITH INTEREST AT THE RATE OF 18% PER ANNUM IN FAVOUR OF THE RESPONDENT HEREIN. 4. AGGRIEVED, THE APPELLANT IS IN APPEAL BEFORE US. BY REASON OF THE IMPUGNED ORDER, AS NOTICED HEREINBEFORE, THE COMMISSION AWARDED A SUM OF RS 1,37,806 WITH INTEREST AT THE RATE OF 18% PER ANNUM IN FAVOUR OF THE RESPONDENT HEREIN. 4. AGGRIEVED, THE APPELLANT IS IN APPEAL BEFORE US. MR RADHAKRISHNA S. HEGDE, LEARNED COUNSEL APPEARING FOR THE APPELLANT HAS RAISED A SHORT QUESTION IN SUPPORT OF THIS APPEAL CONTENDING THAT HAVING REGARD TO THE CLAIM MADE BEFORE THE MRTP COMMISSION AND EVIDENCE ADDUCED BEFORE IT BY THE RESPONDENT NO CASE HAS BEEN MADE OUT FOR GRANT OF COMPENSATION TO THE EXTENT OF REIMBURSEMENT OF THE ENTIRE AMOUNT OF CONSIDERATION PAID BY HIM FOR PURCHASE OF THE SAID CAR TO THE APPELLANT AS WELL AS THE COST OF REPAIRS INCURRED THEREFOR. 5. THE LEARNED COUNSEL APPEARING FOR THE RESPONDENT, HOWEVER, SUPPORTED THE IMPUGNED JUDGMENT. 6. THE RESPONDENT HEREIN IN HIS APPLICATION FILED BEFORE THE COMMISSION ALLEGED CERTAIN DEFECTS IN THE CAR. HE FURTHERMORE ALLEGED THAT HE HAD SPENT A HUGE AMOUNT TOWARDS REPAIRS OF THE CAR. HE CONTENDED THAT DESPITE THE FACT THAT THE CAR HAD DONE ONLY 9500 KILOMETRES, THE MECHANIC HAD RECOMMENDED CHANGE OF PISTON AND THE RINGS OF THE ENGINE OF THE CAR. IN HIS EVIDENCE BY WAY OF AN AFFIDAVIT THE RESPONDENT FURNISHED DETAILS OF THE AMOUNT SPENT BY HIM TOWARDS REPAIRING CHARGES. THE RESPONDENT NEITHER IN HIS APPLICATION NOR IN HIS EVIDENCE RAISED ANY FOUNDATIONAL FACT AS TO ON WHAT BASIS HE CLAIMED THE AMOUNT OF RS 1,37,806. THE ONLY EVIDENCE WHICH HAS BEEN ADDUCED BY HIM WAS THAT HE HAD SPENT A SUM OF RS 7500 TOWARDS THE REPAIR OF THE CAR INCLUDING ITS ENGINE. 7. THE COMMISSION HOWEVER BY REASON OF THE IMPUGNED ORDER DID NOT CONSIDER THE AFOREMENTIONED ASPECTS OF THE MATTER. IT NEITHER REFERRED TO THE PLEADINGS OF THE PARTIES NOR THE EVIDENCE ADDUCED BY THE RESPONDENT. IT PROCEEDED TO PASS THE IMPUGNED JUDGMENT ONLY ON THE PREMISE THAT COMPENSATION HAD BEEN GRANTED IN FAVOUR OF OTHER OWNERS OF MONTANA CARS IN A LARGE NUMBER OF CASES AND AS SUCH. THERE WAS NO NEED TO ADJUDICATE UPON THE ISSUE WHETHER THE APPELLANT HAS PERPETRATED THE PROHIBITED TRADE PRACTICES. IT PROCEEDED TO PASS THE IMPUGNED JUDGMENT ONLY ON THE PREMISE THAT COMPENSATION HAD BEEN GRANTED IN FAVOUR OF OTHER OWNERS OF MONTANA CARS IN A LARGE NUMBER OF CASES AND AS SUCH. THERE WAS NO NEED TO ADJUDICATE UPON THE ISSUE WHETHER THE APPELLANT HAS PERPETRATED THE PROHIBITED TRADE PRACTICES. THE COMMISSION OBSERVED: "UNFAIR TRADE PRACTICES ON THE PART OF THE RESPONDENT ARE MANIFEST AND NEED NO FURTHER REITERATION." THE COMMISSION, HOWEVER, REFERRED TO THE AFFIDAVIT AFFIRMED BY THE RESPONDENT HEREIN IN SUPPORT OF HIS CLAIM IN THE APPLICATION AND PROCEEDED ON THE BASIS THAT THE PURCHASE PRICE COVERED BY THE INVOICE IS RS 1,25,006 AND FURTHER REPAIRS, REPAINTING, ETC. WORKS OUT TO BE AT RS 7500 AND THUS THE AGGREGATE AMOUNT TO BE PAID TO THE APPLICANT WOULD BE RS 1,37,806. 8. NO BASIS WHATSOEVER WAS LAID FOR DIRECTING PAYMENT OF THE PURCHASE PRICE COVERED BY THE INVOICE TO THE EXTENT OFRS 1,25,006. 9. NON-CONSIDERATION OF THE PLEADINGS OF THE PARTIES AS ALSO TOTAL NON-CONSIDERATION OF THE EVIDENCE ADDUCED BY THE RESPONDENT GIVES RISE TO A SUBSTANTIAL QUESTION OF LAW WITHIN THE MEANING OF SECTION 100 CPC. TO THIS EXTENT THE JUDGMENT AWARDED BY THE COMMISSION, IN OUR CONSIDERED OPINION, IS PERVERSE AND THUS MERITS INTERFERENCE IN EXERCISE OF OUR POWER UNDER SECTION 55 OF THE ACT. 10. WE, THEREFORE, ALLOW THE APPEAL IN PART AND MODIFY THE AWARD PASSED BY THE COMMISSION TO THE EFFECT THAT THE RESPONDENT INSTEAD OF RS 1,37,806 SHALL BE ENTITLED TO A SUM OF RS 7500 TOWARDS THE AMOUNT SPENT BY HIM FOR THE REPAIRS OF THE CAR. 11. IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE ALSO OF THE OPINION THAT THE RESPONDENT WOULD BE ENTITLED TO A SUM OF RS 5000 BY WAY OF COMPENSATION. HE SHALL ALSO BE ENTITLED TO INTEREST ON THE SUM OF RS 7500 AT THE RATE OF 18% PER ANNUM FROM 2-2-1993 TILL THE DATE OF PAYMENT. WE ARE ALSO OF THE OPINION THAT BESIDES THE COSTS AWARDED IN HIS FAVOUR THE APPELLANT SHOULD ALSO BEAR HIS COSTS FOR THIS APPEAL WHICH IS QUANTIFIED AT RS 5000. THE A APPEAL IS THUS ALLOWED IN PART AND TO THE EXTENT MENTIONED HEREINBEFORE. .