ORDER
M.B. Shah, J. (President)
1. Vakalatnama filed by Ms. Raman, the learned Counsel for the appellant in First Appeal No. 441/2005 is taken on record.
2. The complainant, Mr. Ajay Ashok Mahadik, had booked a Tempo Trax of M/s. Bajaj Tempo Ltd- by placing order in the prescribed form with its dealer, Sasangi Engineering (Bombay) Pvt. Ltd. (opp, party No. 2). For this he paid a total price of Rs. 3,40,900 by taking a loan from M/s. 20th Century Financial Corporation. The amount was paid to opposite party No. 2 on 3.9.1996 for forwarding the same to the manufacturer. It is also established on record that the said amount along with other amounts was forwarded by the dealer to opposite party No. 1 manufacturer. As the vehicle was not delivered, the complainant filed Complaint No. 249 of 1997 before the State Consumer Disputes Redressal Commission, Maharashtra. The State Commission, after considering the various contentions, allowed the said complaint and held that the opposite party No. 1 (the manufacturer) and opposite party No. 2 (the dealer) were jointly and severally liable to refund the amount of Rs. 3,40,900 to the complainant with interest at the rate of 12% per annum with effect from 3.9.1996 till its realization. The State Commission has also ordered the opposite parties to pay a compensation of Rs. 50,000 to the complainant for harassment and mental agony suffered by him. It has also ordered for payment of costs assessed at Rs. 10,000.
3. Against that order, the dealer has preferred Appeal No. 307/2004.
4. Belatedly, Force Motors Ltd. (previously known as Bajaj Tempo Ltd.) preferred Appeal No. 441/2005 on 18.10.2005. For the alleged delay in filing the appeal, the manufacturer stated that they have not received the copy of the order dated 16.7.2004 passed by the State Commission which was sent through UPC. It was also stated that for the first time they received the copy of the order from the State Commission on 29.9.2005 when they applied for its certified copy. Hence, delay may be condoned.
5. In our view, it is not expected from Force Motors Ltd. (Bajaj Tempo Ltd.) to make such type of false statements for condonation of delay. This would be clear from the fact that the order was pronounced on 28.2.2004. Thereafter, the complainant by letter dated 20.9.2004 informed the manufacturer to comply with the aforesaid order which was received by the company in the last week of September 2004. The operative portion of the order was also conveyed along with the said letter. A copy of the order passed by the State Commission was also forwarded to the manufacturer but there was no response from the manufacturer.
6. Thereafter on 7.4.2005, a letter was again written to the manufacturer by the complainant reproducing the operative portion of the order and it was stated that the dealer had preferred Appeal No. 304/2004 against the impugned order passed by the State Commission. Therefore, the manufacturer should comply with the directions issued by the State Commission, as stay order was granted by the National Commission in favour of the dealer. Thereafter on 5.9.2005, the complainant informed the manufacturer that despite the earlier communications dated 7.4.2005 and 20.9.2004, there was no response, hence, Execution Application would be filed against the manufacturer and its Directors. To that letter, on behalf of the manufacturer, a reply was sent that one Advocate, Mr. Shirke was appearing on their behalf but he has not appeared at the time of final hearing of the matter. It was mentioned that they were yet to receive the certified copy of the order from the Advocate with a specific statement that the steps were being taken for obtaining the certified copy. From this correspondence, it is apparent that the manufacturers were fully aware of the order dated 28.2.2004. We expect that a company like Bajaj Tempo Ltd. ought not to have made such a false statement for getting the delay condoned.
7. Further, on the facts, it is apparent that the dealer has forwarded the amount received from the complainant to the manufacturer, M/s. Bajaj Tempo Ltd. It is also an admitted fact that the vehicle was not delivered to the complainant. May be, there is some dispute between the dealer and the manufacturer. That would not mean that the manufacturer is not liable to deliver the vehicle to the complainant or in any case refund the amount received by it. In this view of the matter, in our view, it is not necessary to refer to the other documents which are produced on record by the dealer for establishing that the dealer has sent the amount of Rs. 3,40,900 to the manufacturer. It is also to be noted that the dealer had filed civil suit against the manufacturer in the year 1997 before the High Court of Bombay and that suit is still pending. Whatever may be the dispute between the dealer and the manufacturer in our view the consumer is not required to suffer.
8. The law on the subject is settled by the Apex Court. In Hindustan Motors Ltd. and Anr. v. N. Sivakumar and Anr. (2000) 10 SCC, the Court approved the following observations made by the National Commission while delaing with such contention:
An apprehension has been expressed by the dealer that the burden of this may ultimately fall upon the dealer. We make it clear that for the manufacturing defects in the vehicle, the dealer cannot be held liable. The liability must be borne by the manufacturer.
9. Similarly the Apex Court in Jose Philip Mampillil v. Premier Automobiles Ltd. and Anr. held :
8. In our view, it is shameful that a defective car was sought to be sold as a brand new car. It is further regrettable that, instead of acknowledging the defects, the 1st respondent chose to deny liability and has contested this matter. For this failure in service the appellant is entitled to the following reliefs.
(a) …. The liability to pay the repair cost will be joint and several of both the respondents. The 2nd respondent is being held jointly liable as it was the duty of the 2nd respondent to have refused to deliver a defective car and in any case to have properly repaired the car during the warranty period….
(b) It is clarified that the liability to pay is, as stated above, joint and several. In the event of the amount not being paid forthwith, the District Forum shall ensure execution expeditiously and immediately, if necessary, by making the 2nd respondent pay initially. It will then be for the 2nd respondent to claim reimbursement from the 1st respondent, if in law they are entitled to do so.
(c) There is no doubt that the appellant has had to suffer mental agony in taking delivery of a defective car after having paid for a brand new car and in taking the car again and again to the dealer for repairs. For this mental agony and torture, we direct that the appellant shall be entitled to a sum of Rs. 40,000. The liability to pay this amount shall also be joint and several of both the respondents. This amount is to be paid within a period of one month from today. The District Forum shall ensure payment, if necessary by execution.
(d) The 1st respondent had necessarily filed an appeal before the State Forum …. We, therefore, direct the 1st respondent to pay to the appellant by way of costs a sum of Rs. 50,000.
10. In our view, it is shameful that neither the manufacturer nor the dealer has returned the amount to the complainant for years together despite the admitted fact that the vehicle is not delivered for which the manufacturer has received the amount through the dealer.
11. In the result, appeals filed by the dealer as well as the manufacturer are required to be dismissed. However, learned Counsel for the dealer submitted that once the amount is sent to the manufacturer, the dealer cannot be held liable. In our veiw, in such cases, there is joint and several liability of the dealer and the manufacturer to refund the amount. In any case if the dealer is required to pay the said amount, it is open to the dealer to recover the same from the manufacturer. Their inter se dispute cannot be decided under the Consumer Protection Act, 1986.
12. In the result, both the appeals are dismissed. It would be open to the complainant to withdraw the amount of Rs. 5 lakhs deposited by the manufacturer with the State Commission, Maharashtra. It would be open to the complainant to recover the remaining amount from the manufacturer, Bajaj Tempo Ltd. (now Force Motors Ltd.). In case it fails to recover, it would be open to him to recover it from the dealer.
13. Appellant, in First Appeal No. 441/ 2005, shall pay Rs. 1 lakh as costs to the complainant. This cost is imposed not only for delay but also for making false statements before this Commission.
Appeals stand disposed of accordingly.