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2005 DIGILAW 32 (UTT)

MAHINDRA & MAHINDRA LIMITED v. MANWAR SINGH

2005-02-15

K.D.SHAHI, LUXMI SINGH, SURENDRA KUMAR

body2005
ORDER Mr. Justice K.D. Shahi, President—This appeal has been filed by Mahindra & Mahindra Limited, the manufacturer of the vehicle which has been sold to the complainant against the order dated 23rd July, 2004 passed by the District Forum, Pauri, Garhwal whereby the complaint of the complainant for refund of excise duty of Rs. 34,000/- has been allowed against the appellant. 2. The brief facts of the case are that the complainant Sh. Manwar Singh purchased a Mahindra & Mahindra jeep on 27.3.1999 from Premier Motors and Automobile Engineers. He paid the entire price including excise duty of Rs. 34,000/-. The vehicle was registered on 5.4.1999. It was registered as a taxi and he sent all the papers for refund of excise duty but he has not been paid the refund amount, hence he filed the complaint before the learned Forum. 3. In the original complaint Mahindra & Mahindra Limited was not even impleaded party. It is however that subsequently through an amendment application incorporated on 26.5.2003 that Mahindra & Mahindra Limited has been made party but no consequential amendment has been made in the complaint. Not even a single word has been written in the complaint even after amendment whether the relationship between the Premier Motors and Mahindra & Mahindra Limited is that of dealer to dealer or that of principal and agent. If the Premier Motors is a dealer and has received the amount as a principal seller, if there is any negligence on the part of the Premier Motors, Mahindra & Mahindra Limited is not liable. It is only when there is relationship of principal and agent, then only the principal is liable for the negligence of the agent. To our utter surprise even after amendment not even a single word or whisper has been made regarding any deficiency in service of Mahindra and Mahindra Limited. In para 3 of the complaint, it is only alleged that payment has been made to Premier Motors. Notice was also given to Premier Motors and in para 9 of the complaint, it is alleged that entire talk was between the complainant and Sh. Bobby, owner of Premier Motors. In the affidavit filed by the complainant on 27.11.2001, he has also not said anything against Mahindra and Mahindra Limited and any deficiency in service of Mahindra & Mahindra Limited. 4. Bobby, owner of Premier Motors. In the affidavit filed by the complainant on 27.11.2001, he has also not said anything against Mahindra and Mahindra Limited and any deficiency in service of Mahindra & Mahindra Limited. 4. However, in the complaint Premier Motors filed written statement and denied the allegations. However, admitted the sale of the taxi. In para 10, it is alleged that he is not liable for the refund of the amount. It is alleged in para 13 of the written statement that the Premier Motors that all the formalities had to be completed within 90 days for the refund of the excise amount but the complainant did not complete the formalities. The notice dated 1.12.2001 is much after the lapse of the statutory period and it was alleged that no complaint lies against the opposite party No. 1. 5. No written statement appears to have been filed by the Mahindra & Mahinda Limited. However after the complaint has been allowed against them, they have filed the appeal. According to Mahindra & Mahindra Limited, they did not receive any paper either from the Premier Motors or from the complainant and, therefore, there was no deficiency in their service. 6. One thing has clearly come out from the arguments of the parties that on 25.5.1999 Premier Motors wrote a letter to the complainant, which reads as, “Subject: Rejection of Claim Document Excise Duty. Dear Sir, it is submitted that the claim document which was deposited to this office have been rejected by the excise authority due the name found differ in Ann ‘C’. You are requested to report to this office and resubmit the paper for our further action. In case of failure, this office will not be held responsible for the same. Actual name—Manwar Singh, Name found in Ann. C—Manbar Singh.” This letter is totally false in respect that the claim has not been rejected by the excise authority. It was not even forwarded to Mahindra & Mahindra Limited. Premier Motors wrote a letter out of its own that claim has been rejected. Thus this is the fraud of the Premier Motors to have informed the complainant like this without referring the matter to Mahindra & Mahindra Limited or the Excise Department. Premier Motors had got no right or authority to reject the claim merely on the ground of discrepancy in the name. Thus this is the fraud of the Premier Motors to have informed the complainant like this without referring the matter to Mahindra & Mahindra Limited or the Excise Department. Premier Motors had got no right or authority to reject the claim merely on the ground of discrepancy in the name. It was the jurisdiction of the Excise Department to have given the decision. It could have got the name corrected or could have ignored the difference between Manwar and Manbar. In the ground of appeal Mahindra & Mahindra Limited has specifically written in para 3(c), “However, the respondent No. 2 (Dealer) while writing this letter inadvertently mentioned that the claim has been rejected on account of the discrepancy instead of saying the claim will be rejected by the Excise Authorities, but nevertheless categorically asked the complainant/respondent No. 1 to re-submit the papers after necessary correction which the complainant/respondent No. 1 failed to do. Annexed hereto is the true copy of the letter dated 25.5.1999 and marked as Annexure-1.” Thus when the matter has not gone into the hands of Mahindra & Mahindra Limited and Excise Department, how Mahindra & Mahindra Limited can be held to be guilty could be explained by either of the parties. 7. The matter does not end here as above. In the judgment, the learned Forum has written that on 5.4.1999, the complainant has sent all the papers to the opposite party No. 1, i.e., Premier Motors. Therefore, it is clear that within 90 days the complainant has lodged his claim for refund of excise duty and on 25.5.1999 the Premier Motors informed the complainant about the discrepancy in the name and it is written that it is the opposite party No. 1 who deliberately giving emphasis on a letter in a word namely Manwar and Manbar has not sent the papers and the manufacturer company did not take the matter in correct prospective. The manufacturer company is a big company. It is not dreaming that the complainant has purchased a Mahindra and Mahindra jeep and has applied for refund of his excise amount from the dealer. Where there are purchasers in lacs, unless the manufacturer is requested for refund, how it can be said that the manufacturer did not take up the matter correctly. The learned Forum wrote that manufacturer could have got explained the difference between Manwar and Manbar. Where there are purchasers in lacs, unless the manufacturer is requested for refund, how it can be said that the manufacturer did not take up the matter correctly. The learned Forum wrote that manufacturer could have got explained the difference between Manwar and Manbar. It is true but only when some information could have been given to the manufacturer. Neither the complainant has written in his complaint, nor the dealer Premier Motors has anywhere written that they have submitted the papers to Mahindra & Mahindra Limited. Unless papers have been submitted to Mahindra & Mahindra Limited, no deficiency in service can be found against Mahindra & Mahindra Limited. The entire deficiency in service as is proved and alleged is only against Premier Motors and not against the Mahindra & Mahindra Limited. We have already said above that there is absolutely no allegation that Premier Motors is the agent of the manufacturer. The relationship in case like this is that of dealer of dealer. Nothing has been said that any price has been paid to Mahindra & Mahindra Limited. The finding, therefore, against Mahindra & Mahindra Limited is totally without evidence and allegation. To our utter surprise the finding is against Premier Motors but the award has not been passed against opposite party No. 1 Premier Motors but it has been passed only against the opposite party No. 2, Mahindra & Mahindra Limited against whom there is absolutely no allegation. 8. We could have very easily decided the appeal in favour of the complainant giving the finding that the amount be paid by opposite party No. 1, Premier Motors, whose deficiency in service is there but we are sorry that the complaint has not been allowed against Premier Motors. The complainant did not file any appeal against this order and the finding against Premier Motors has become final. It is settled principle of law that complaint against whom is not allowed, it may not be written that it is dismissed against him but it shall be deemed to have been dismissed or rejected against him. The complainant did not file any appeal against this order and the finding against Premier Motors has become final. It is settled principle of law that complaint against whom is not allowed, it may not be written that it is dismissed against him but it shall be deemed to have been dismissed or rejected against him. The complainant ought to have filed an appal against that order, only then award could have been passed against the opposite party No. 1, Premier Motors but in the absence of any such appeal, in the appellate for a, we cannot give any relief of the complainant because the order has become final between the parties in the absence of any appeal. Even otherwise under Section 24 of the Consumer Protection Act, it is provided that every order of District Forum, State Commission or the National Commission shall if no appal has been preferred against said order under the provisions of the Act, be final. Thus the order not allowing the complaint against the opposite party No. 1 has become final by not filing an appeal by the complainant. 9. The complainant referred the ruling reported in III (2002) CPJ 193 (NC)=2003 (50) ALR (Consumer), Panchawati Motors v. Dr. S.K. Garg and Another, in which it has been held that if the complainant has preferred his claim, it is the duty of the manufacturer to seek the refund of the excise duty and if he has failed, certainly there is deficiency in service on the part of the manufacturer. We fully agree with this ruling but as said above it is nowhere said that any paper has been sent to the manufacturer. Even in the complaint not even a single word has been said regarding the deficiency in service of Mahindra & Mahindra Limited. 10. We are Consumer floras. We are making summary trials and in these summary trials, the most relevant factor to determine is deficiency in service. Thus the complainant may be entitled to the refund of the excise duty but if there is no deficiency in service, we cannot allow the consumer complaint. The complainant is at liberty to file a regular suit and get his amount refunded, if he is so entitled. He may also move to the appropriate authorities, if it is open to him to claim the refund of excise duty. The complainant is at liberty to file a regular suit and get his amount refunded, if he is so entitled. He may also move to the appropriate authorities, if it is open to him to claim the refund of excise duty. But in a case like this no compensation can be awarded against the appellant, where no deficiency in service has been alleged against it. ORDER The appeal is hereby allowed. The order dated 23.7.2004 against the appellant is hereby quashed. The complaint is hereby dismissed against the appellant. The complainant is at liberty to file a suit or agitate the matter before the appropriate authority, if he so wishes and in the event any such proceeding is initiated, the finding recorded by the learned Forum or this Commission shall not be treated as an expression on the merits of the case. Cost of this appeal shall be easy. Appeal allowed.