Judgment:
K.K. Srivastava, President:
1. Heard learned Counsel for the appellant and perused the impugned order dated 22.3.2002 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum) in Complaint Case No. 128 of 2000 filed by the respondent No. 1 Shri Krishan Kumar Bansal. The complaint case was proceeded ex parte against the appellant/O.P. No. 1 - M/s. Fiat India Automobiles Pvt. Ltd., Regd. Office Maker Chambers, VI Nariman Point, Mumbai through its Managing Director and O.P. No. 2 - M/s. Delhi Automobiles Limited, Industrial Area, 181/3-B, Chandigarh.
2. The complainant booked a Pal Peugeot 309 car and deposited a sum of Rs. 25,000/- vide receipt No. 65202 dated 19.10.1995 as advance with respondent No. 2 - M/s. Delhi Automobiles Limited, the dealer and agent of the appellant-M/s. Fiat India Automobiles Pvt. Ltd. The complainant/respondent No. 1 Shri Krishan Kumar Bansal a resident of Pashupati Industries, 204, Industrial Area, Phase-I, Panchkula cancelled his booking vide letter dated 8.7.1997 and sent the same to the Sales Department of M/s. Pal Peugeot Limited, Kalyan Sheel Road, Manpada Dombivili, District Thane, Maharashtra. Several reminders were sent seeking refund of the booking amount aforesaid and some of the reminders sent were dated 6.4.1998, 25.6.1998 and 4.8.1999 but O.Ps. refused to refund the amount, which was deficiency in service on the their part. The complainant filed the complaint seeking issuance of direction to the O.Ps. including the appellant to refund Rs. 25,000/- as advance money deposited with interest @ 18% per annum and sought compensation of a sum of Rs. 10,000/- for mental agony and harassment and prayed for litigation costs of Rs. 3,000/- and claimed interest @ 18% per annum on this amount as well.
3. The appellant/O.P. No. 1 as well as respondent No. 2/O.P. were served with the notices of complaint case but they did not appear to contest the same and were proceeded ex parte. The complainant filed his own affidavit and documents in support of his case, which was believed by the District Forum who allowed the complaint ex parte and directed the O.Ps. to refund Rs. 25,000/- to the complainant with interest @ 9% per annum from the date of cancellation order i.e., 8.7.1997 till realization. A sum of Rs. 1,000/- was awarded as compensation for mental and physical harassment and allowed a sum of Rs. 5,000/- as litigation expenses. The order was directed to be complied with within one month from the date of receipt of certified copy of the order.
4. The appellant/O.P. No. 1- M/s. Fiat India Automobiles Pvt. Ltd. felt aggrieved against the impugned order and has filed this appeal. The appeal was initially dismissed as being barred by limitation. The order dismissing the appeal as being barred by limitation was challenged before the Honble National Consumer Disputes Redressal Commission, New Delhi (for short hereinafter referred to as the National Commission) in Revision No. 4 of 2003. The revision was allowed by the Honble National Commission and the delay of 25 days in filing the appeal was condoned. The appeal was remanded for being decided afresh on merit.
5. After receiving the certified copy of the order passed in revision by the Honble National Commission, notices were directed to be sent to the respondents for hearing on 22.4.2004. The record of the complaint case was also ordered to be requisitioned from the District Forum. The respondent No. 1- Shri K.K. Bansal who was the complainant was served with the notice while the notice of respondent No. 2 - M/s. Delhi Automobiles Limited was returned with the report left. Since the respondent No. 2 had been proceeded ex parte along with the appellant and was saddled with the liability to pay the aforesaid amount along with the appellant and since M/s. Delhi Automobiles Ltd. did not put in appearance even at the time when the matter regarding the condonation of delay was considered and decided and also did not put in appearance before the Honble National Commission, no further notice was sent to the respondent No. 2. The respondent No. 1 Shri K.K. Bansal was personally served through courier and he did not put in appearance to contest the appeal.
6. The appeal was fixed for hearing on merit on 11.5.2004. Today i.e., 11.5.2004, which is the date of hearing of the appeal, the case was called out but the respondent No. 1/complainant Shri Krishan Kumar Bansal did not put in appearance before this Commission.
7. We have heard Mr. Jai Savla, Advocate appearing for the appellant and we have carefully perused the impugned order and the record of the case.
8. The learned Counsel for the appellant mainly stressed on the merit of the case on the basis of the factual averment made by the appellant in response to the complaint case and filed evidence comprising Memorandum of Association, Article of Association and Certificate of Incorporation of the appellant company - M/s. Fiat India Automobiles Pvt. Ltd. on 2.1.1997 and affidavit of the Director of the appellant company namely Mr. G. Prinsi and made reference to the aforesaid evidence despite the fact that the appellant had not put in appearance before the District Forum and placed before the District Forum a written reply to the averments made by the complainant/respondent No. 1 in the complaint case and did not lead evidence in support of the defence and also in rebuttal of the evidence led by the complainant/respondent No. 1.
9. The learned Counsel for the appellant contended that the evidence could be admitted as an additional evidence under Order 41 Rule 27 of the Code of Civil Procedure but when he was apprised of the fact that the appellant had not filed any written statement setting up any defence, then how could he lead evidence in support of a defence plea, which was never raised by the appellant before the District Forum. Mainly the contention of the learned Counsel for the appellant was that the complainant/respondent No. 1 himself averred in the complaint about booking of Pal Peugeot 309 car with M/s. Pal Peugeot and deposited a sum of Rs. 25,000/- as booking amount with the said company through the dealer - M/s. Delhi Automobiles Limited and sent his communication for cancelling the booking of the said car to the Sales Department of M/s. Pal Peugeot Limited, Kalyan Sheel Road, Manpada Dombivili, District Thane, Maharashtra and sent reminders to the said company with which the appellant-M/s. Fiat India Automobiles Pvt. Ltd. has no concern at all, the District Forum ought to have considered this aspect and should have recorded a finding that the complainant/respondent No. 1 failed to prove his case against the respondent No. 1 who is the appellant before us.
10. We are of the considered opinion that all these averments made in appeal are in respect of facts as to when the appellant-company came into being after being incorporated as a company, which in the instant case is alleged to be 2.1.1997 and about the appellant-company who had been arrayed as O.P. No. 1 in the complaint case had a separate and distinct identity than M/s. Pal Peugeot Ltd. with whom the complainant dealt with while booking the Pal Peugeot 309 car and deposited a sum of Rs. 25,000/- and, as such, the District Forum was not required to consider that aspect of the matter in the absence of any such plea being raised by the appellant/O.P. No. 1 in the complaint case before the District Forum.
At this stage, the learned Counsel for the appellant stated that as a matter of fact, the appellant could not put in appearance before the District Forum and place the defence plea by filing a written statement to the averments made in the complaint case and lead evidence in support of the defence plea as well as in rebuttal of the evidence of the complainant and submitted that a reasonable opportunity be allowed to the appellant to contest the case on merit before of District Forum.
11. After carefully going through the material placed on record before us and the submissions made by the learned Counsel for the appellant and taking into consideration the contention that the appellant-company is alleged to be having a separate and distinct identity than M/s. Pal Peugeot Limited and since such a plea, if successfully proved, would be quite material for the due disposal of the complaint case, a reasonable opportunity be afforded to the appellant to contest the case before the District Forum on merit.
12. Resultantly, we allow this appeal and set aside the ex parte order under appeal passed by District Forum and remand the complaint case to the District Forum-II, U.T., Chandigarh with the direction that it shall allow a reasonable opportunity according to law as contained in provisions of Consumer Protection Act, 1986 (for short hereinafter referred to as the C.P. Act) as amended by Amendment Act, 2002 (Act No. 62 of 2002) and thereafter shall allow the appellant as well as the complainant/respondent No. 1 to lead evidence in support of their respective cases and proceed to decide the complaint case according to law within the timeframe of three months as provided by the C.P. Act. The appellant is directed to appear before the District Forum-II, U.T., Chandigarh on 25.5.2004. The District Forum shall issue notice afresh to the complainant apprising him of the complaint case having been remanded for decision afresh by this Commission. The costs of the appeal shall be borne by the appellant.
Copies of this order be sent to the parties free of charge.