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2018 DIGILAW 132 (SC)

TELCO NOW TATA MOTORS LIMITED v. VIPIN KUMAR

2018-01-23

N.V.RAMANA, S.ABDUL NAZEER

body2018
JUDGMENT : N.V. Ramana, J. 1. Leave granted in Special Leave Petition(Civil) No. 5417 of 2005. 2. These appeals are filed against the common impugned order dated 25.10.2004, passed by the National Consumer Disputes Redressal Commission [for short ‘NCDRC’], wherein the NCDRC partly allowed the revision petition and directed the appellants to refund Rs. 2,65,000/-with interest @ 12% per annum w.e.f 27.8.1998 and cost of Rs 10,000/-to respondent no. 1. It may be noted, though appellant-Telco further challenged the aforesaid order by filing Review Petition whereby NCDRC dismissed the Review Petition as well on 6.11.2006. 3. A brief factual background may be necessary to dispose of the case at hand. Respondent no. 1/Complainant booked a chasis of TATA bus with the Punjab Motors (Kurali) Ltd. (authorized dealer of the appellant-Company). The complainant paid an amount of Rs. 11,250/-on 22.07.1998. Thereafter two receipts amounting to Rs. 49,000/-each is supposed to have been paid by respondent no. 2 [independent financing company]. Although the bus got registered and a cheque was issued by the respondent no. 2 in lieu of the liability of respondent no. 1, but the same was dishonored for insufficient funds. It may be noted that the delivery of the bus could not take place and it was ultimately sold to a different customer. Aggrieved by the non-delivery of the bus inter alia among other things, the respondent no. 1 filed a consumer complaint before the district forum praying for handing over of the bus, further claiming compensation of Rs. 1,00,000/-and litigation cost of Rs. 10,000/-. 4. The District Forum allowed the complaint on the ground that the respondent no. 1 paid an amount of Rs.2,65,000/-for which he was entitled for delivery of a bus. Further directed that the respondent no. 1 was entitled for a compensation of Rs. 10,000/-as cost and Rs. 2,000/-per day towards loss of income for every day till handing over of the bus. 5. The aforesaid order was challenged by the appellants, before the State Commission. State Commission partly allowed the appeal to a limited extent of modifying the compensation from Rs. 10,000/-to Rs. 2,000/-and the compensation for the loss of livelihood was rejected as being excessive and illusory. 6. Again, the appellants further approached NCDRC in revision, which was partly allowed to the extent that the direction concerning the delivery of the bus was rejected but the amount of Rs.2,65,000/-was directed to be refunded. 10,000/-to Rs. 2,000/-and the compensation for the loss of livelihood was rejected as being excessive and illusory. 6. Again, the appellants further approached NCDRC in revision, which was partly allowed to the extent that the direction concerning the delivery of the bus was rejected but the amount of Rs.2,65,000/-was directed to be refunded. Aggrieved by the aforesaid order of NCDRC, appellants are in appeal before us. 7. We have heard learned counsel for the parties. 8. We are of the opinion that there is no material to substantiate that an amount of Rs.2,65,000/-has been paid by the Respondent No.1 herein. However, there is sufficient evidence, which is also admitted by the appellant, to show that respondent no. 1 had paid an amount of Rs.1,09,250/-. 9. In view of the fact that the complete consideration was not paid to the Punjab Motors (Kurali) Ltd. as the cheque provided by the respondent no. 2 was never encashed due to dishonor of the same, the NCDRC has rightly rejected direction for delivering the bus to the respondent no.1. Moreover, nothing is brought on record to show that the respondent no. 1 was diligent and ready to pay the amount due to Punjab Motors (Kurali) Ltd. Hence, it would not be equitable in these circumstances to sustain the direction by the courts below concerning the delivery of the bus. 10. Without prejudice to the above, we may note that the respondent had paid an initial amount of Rs. 1,09,250/-which was not returned to him and was lying with the Punjab Motors (Kurali) Ltd. Taking into consideration the long pendency of the cases, the Respondent No.1 is given benefit of the same. Accordingly, total amount of Rs.1,09,250/-has to be paid to the respondent No.1 by the Punjab Motors (Kurali) Ltd., authorized dealer of the Company. Ordered accordingly. 11. The order of the National Commission is modified to the above extent. 12. It has been brought to our notice that an amount of Rs.2,65,000/-(Rupees two lacs sixty five thousand only) has already been deposited by the Punjab Motors (Kurali) Limited – authorized dealer, vide Demand Draft No. 940866 issued by the State Bank of Patiala, Murinda Branch before the District Consumer Forum, Kangara, Himachal Pradesh. The District Consumer Forum, Kangara is directed to pay an amount of Rs.1,09,250/-(Rupees one lakh only), out of Rs.2,65,000/-to Mr. Vipin Kumar, Respondent No.1 herein. The District Consumer Forum, Kangara is directed to pay an amount of Rs.1,09,250/-(Rupees one lakh only), out of Rs.2,65,000/-to Mr. Vipin Kumar, Respondent No.1 herein. The balance amount may be returned back to the Punjab Motors (Kurali) Limited – authorized dealer. 13. The appeals are disposed of in the above terms.