Full Judgment
B.A. Shaikh, Presiding Member:1. This appeal is preferred against an order dated 07/01/2005 passed by the District Consumer Forum, Yavatmal in CC No. 297/2004, by which the complaint has been partly allowed.2. The case of the complainant in brief is that, he purchased a truck for his own occupation. He wanted to purchase new tyres and tubes for that truck. He approached to the Opposite Party (for short O.P.) No. 1 for purchasing the same as it is the dealer of the same. The O.P. No.1 represented that the tyres and tubes of O.P. No.2. are imported and having long life. The complainant therefore purchased on 26/09/2003, the said four tyres , tubes and flaps for Rs. 22,000/- from O.P. No.1. The O.P. No.1 gave guaranty for the same for six months by giving writing on a bill to the complainant. However, the said tyres and tubes got burst one after another within one and half month. The O.P. No.1 did not replace the same despite of making several requests by the complainant to it. The complainant therefore kept idle his truck and he plied another truck by taking it on hire. Therefore, the complainant prayed that direction be given to the O.P. Nos. 1and2 to replace the said tyres and tubes by new ones or otherwise to refund Rs. 22,000/- to him with interest and also to pay him compensation of Rs.25,000/- towards loss sustained by him and also to pay Rs. 10,000/- towards mental harassment and Rs. 5,000/- towards cost of the complaint.3. The District Consumer Forum below issued notice to O.P. Nos. 1and2. It found that the O.P. No.1 refused to take notice and O.P. No. 2 did not receive that notice despite of intimation given to it by the postal authority. Therefore, Forum below proceeded exparte against the O.P. Nos. 1and2.4. The Forum below after considering the evidence brought on record came to the conclusion that as O.P. Nos. 1and2 had not filed the written version to contest the complaint, there is no reason to disbelieve the complaint filed by the complainant. It therefore directed the O.P. Nos. 1and2 to refund jointly and severely to the complainant Rs.22,000/- with interest at the rate of 6% from 26/09/2003 till full payment of that amount. It also directed them to pay Rs.1,000/- towards mental harassment and Rs.500/- towards cost of complaint to the complainant. It also directed to complainant to return four tyres and tubes to the O.P. Nos.1and2 and to take acknowledgement thereof. It also alternatively directed that if said amount is not paid within one month after receiving that order, the O.P. Nos. 1and2 will be liable to pay interest over that amount at the rate of 9% p.a. instead of interest at the rate of 6% p.a.5. Feeling aggrieved by that order the original O.P. No. 2 has preferred this appeal.6. We have heard Advocate A.R. Kalraiya for the appellant and Advocate Mr. Kasture for the respondent No.1/original complainant. The respondent No.2 did not appear though served with notice. This Commission therefore proceeded exparte against it as per order dated 16/07/2013. The aforesaid Advocates also filed their written notes of arguments. We have perused the same and other papers placed before us by both parties.7. The arguments of the learned Advocate of the appellant /original O.P. No.2 in brief point wise is as under.i. The appellant was never served with notice.ii. There is no evidence to prove that the appellant is the main dealer of the imported tyres purchased by the appellant.iii. There is no evidence to prove that the original O.P. No.1/respondent No.2 herein is the authorized sub dealer of the appellant. The appellant has no connection with the O.P. No.1/respondent No.2 herein.
iv. The original complainant /respondent No.1 herein himself made endorsement on the bill about six months guaranty by striking out no guaranty.v. There is no laboratory test report to prove that there was manufacturing defect in the tyres and tubes.vi. The manufacturer of the tyres and tubes are the necessary party to the complaint and as it is not joined the complaint is bad in law.vii. The tyres and tubes were purchased purely for commercial purpose.viii. No direction can be given for refund of the price of tyres, tubes and flaps.
Thus it is submitted by learned Advocate of the appellant that in view of the aforesaid facts and circumstances, the Forum below erred in partly allowing the appeal and, hence, impugned order may be set aside. He relied upon observations made by Honble Supreme Court in the case of Hindustan Motors Ltd. and Anr. Vs. N.SivaKumar and Anr., (2000) 10 Supreme Court Cases 654. In that case direction was given under impugned order to replace a car by new one, of which manufacturing was stopped by the manufacture. Therefore, Honble Supreme Court directed the manufacturer to refund price of that car with interest, compensation and cost. It is also held in that case the dealer is not liable for manufacturing defects in the vehicle.1. On the other hand, the learned Advocate of the respondent No.1 herein/original complainant supported the impugned order and submitted that the appellant and the respondent No.2 herein deliberately remained absent before the Forum below and therefore, appellant cannot raise any plea in appeal and that there are no legal grounds to set aside the impugned order and, hence, appeal may be dismissed.2. At the outset we find that the District Consumer Forum below rightly proceeded exparte against the appellant/original O.P. No.2 after considering postal endorsement on the envelop by which notice was issued by it. However, we find for the following reasons that the District Consumer Forum erred in directing the appellant /original O.P. No.2 to pay the money as referred above to the original complainant.3. Admittedly the O.P. No.2/appellant is not the manufacturer of the tyres, tubes and flaps purchased by the complainant by the original O.P.No. 2 for Rs. 22,000/-. Moreover, there is no evidence to prove that the original O.P. No. 2/appellant had authorized the O.P. No.1/respondent No.2 herein as its sub dealer. We thus find that the appellant /original O.P. No.2 has no concern with sale of tyres, tubes and flaps by original O.P. No.1/respondent No.2 herein to the original complainant. Thus we hold that though the appellant proceeded exparte in the complaint, it is not liable to pay any amount to the complainant since the appellant is neither the manufacture of the tyres, tubes and flaps, nor did it appoint the original O.P. No.1/respondent No.1 herein as its sub dealer. Therefore, on this sole ground the appeal deserves to be allowed as regard direction given to the appellant under impugned order.4. We also find that the aforesaid decision relied upon the learned Advocate of appellant is not applicable to present case since facts and circumstances of the said case are different from those of present case discussed above.5. So far as the correctness or otherwise of the impugned order passed against respondent No. 2 herein /original O.P. No.1 is concerned we find that the same cannot be considered in this appeal as it is preferred only by the original O.P. No.2 against the impugned order.Thus we proceed to pass the following order. ORDER
i. The appeal is partly allowed.ii. The direction given to original O.P. No.2/appellant herein under impugned order for refund of Rs.22,000/- towards price of tyres, and tubes, Rs.1,000/- towards mental harassment and Rs. 500/- towards cost of the complaint with rate of interest specified in that order is hereby set aside.iii. It is made clear that this order does not affect direction given under impugned order to the original O.P. No.1/respondent No.2 herein.iv. No order as to cost in appeal.
v. Copies of the order be furnished to both parties.