NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.
393 OF 1997
(From the order dated 4.2.1997 in F.A.NO.1014/96
of the State Commission, Andhra Pradesh)
The Blue Dart Express Limited . .. Petitioner
Vs.
Stephen Livera .. Respondent
BEFORE:
HONBLE MR. JUSTICE D.P. WADHWA,
PRESIDENT
HONBLE MR. JUSTICE J.K. MEHRA,
MEMBER.
MRS. RAJYALAKSHMI RAO, MEMBER.
MR. B.K. TAIMNI, MEMBER
(i) Contract standard form - small and fine-
print - clause limiting liability -
attention of sender not drawn - not valid
(ii) Courier service - delivery of document to
peon if authorised to receive the same
or not.
For the Petitioner : Mr. R. Jawaharlal, Advocate
For the Respondent : Mr. Ajay Bhall, Mr. Tarun Sharma and
Mr. Vipin Sharma, Advocates.
ORDER
Dated the 14th December, 2001
PER JUSTICE D.P. WADHWA
(PRESIDENT)
Petitioner
runs a
courier service. Petitioner is
aggrieved by the order of the Andhra Pradesh State Consumer Disputes Redressal
Commission dismissing the appeal of the petitioner and in turn upholding the
order of the District Forum. Respondent
as a complainant filed a complaint before the District Forum, Hyderabad,
complaining non delivery of a letter by
the petitioner-opposite party which was to be delivered to the addressee at
Bangalore. Allowing the complaint
District Forum awarded Rs.20,000/- as compensation to the complainant and
also cost quantified at Rs.1,000/-.
Ms. Cephy Livera, minor daughter of
the complainant was to appear for entrance test of Karnataka University for admission to a medical college. She on 29.4.94 sent her
application through the petitioner addressed to her relative Mr. Dephan
Phinheira, Department of Chemistry, Christ College, Bangalore. She paid Rs.100/- as courier charges. There
was a covering letter which contained instructions to Phinheira to submit
the application to the appropriate authority, last date of which was a
4.5.1994. Petitioner did not deliver the letter to the addressee Phinheira but gave it to one Rajan
on 30.4.94 stated to be working
with Phinheira. Complainant was informed accordingly by the
petitioner. Thereafter complainant came
to know that the letter did not reach Phinheira.
Complainant
did not receive her hall ticket for her
to appear in the entrance test and on
12.5.94 she rushed to Bangalore to
ascertain the position. She came to
know that the application had not been
filed on time and that her letter had
not been delivered to
Phienheira. Result was
that the complainant could not appear
in the entrance test which was held on
17th and 18th May, 1994. She represented to
the petitioner who informed her that the letter had been delivered to Rajan, a
peon in the office of the addressee.
It transpired that Rajan went on leave
and by the time he returned, the date had already expired. Alleging deficiency in service,
complainant approached the District Forum. She claimed refund of Rs.100/- paid as courier charges; Rs.1500/- as expenses for going to Bangalore for making enquiry; and Rs.50,000/- as compensation. District Forum allowed the complaint
and awarded Rs.20,000/- as compensation to the complainant with costs of
Rs.1,000/-. Appeal against this order
was
filed by the
petitioner-opposite party which was dismissed and the order of the District was
affirmed.
The
document which is the basis of the
contract between the parties is in extremely small and fine print. Complaint was filed through the father of
the complainant as the complainant was minor at the time she engaged the
services of the petitioner-opposite party.
District forum has recorded a finding that in the written version
petitioner did not stated that the
complainant or her father had signed the courier receipt and accepted
the terms and conditions printed on its back.
District Forum observed that
there was some sort of signatures at
the place for senders signatures on the receipt but it did not look like a
signature or initial of sender or her
representative. It was, therefore,
held that when the courier receipt did not clearly show that the sender or her representative had signed
thereon and accepted the terms and conditions printed on its face or overleaf
and the petitioner-opposite party also
did not in so many words assert that
sender or her representative had
signed or initialed on the courier receipt and accepted the terms and
conditions thereon, therefore, petitioner could not rely on them to non-suit
the complainant or to limit its own liability. This condition limiting the liability of the petitioner, as noted above, is
in small and fine print and as noted
above it is not pleaded that attention of the sender or her representative was drawn
to any such conditions of the
courier service rendered by the petitioner. Then the article meant for
Phinheira could not have been given
to his peon without ascertaining if he was
agent of Phineheira or was authorised to receive any such
document or was usually receiving it
for Phineheira . It could not be
said that peon was other
person on behalf of Phineheira to receive the document. If
we refer to Order V Rule 15 of
Code of Civil Procedure it is specifically mentioned that a servant is not a
member of family within the meaning of
that Rule which provides when defendant is absent from his residence at the time
when service of summon is sought to be
effected on him thereat
and there is no likelihood of his being found thereat within a reasonable time and he has no agent empowered to accept service
of the summons on his behalf service may be made on any adult member of the
family, whether male or female, who is residing with him.
Decision of the Supreme Court in the
case of Bharthi Knitting co. Vs. DHL Worldwide
Express Courier (1996) 4 SCC 704 does
not apply as that case did not consider small and fine print in a document in
a standard form.
We,
therefore, do not find any error in the impugned order of the State Commission
for us to exercise our jurisdiction
under clause (b) of Section 21 of the Consumer Protection Act, 1986. This revision petition is dismissed with
cost of Rs.2000/-.
.J.
(` D.P. WADHWA)
PRESIDENT
..J.
(J.K. MEHRA)
MEMBER
.
(RAJYALAKSHMI RAO)
MEMBER
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION
NO. 974 OF 2001
(From the order dated 16.4.2001 in Appeal Nos.2478 &
2492/96
of the State Commission,
Rajasthan)
Maruti
Udyog Ltd.
Petitioner
Vs.
V.M.
Goel & Anr.
Respondents
REVISION PETITION
NO. 985 OF 2001
(From the order dated 16.4.2001 in Appeal Nos.2478 &
2492/96
of the State Commission,
Rajasthan)
M/s.
Alfa Automobiles
Petitioner
Vs.
V.M.
Goel
Respondent
REVISION PETITION
NO. 447 OF 1997
(From the order dated 28.2.1997
in F.A. Nos.792 & 735/94
of the State Commission,
Haryana)
Maruti
Udyog Ltd.
Petitioner
Vs.
Sudhir
Gautam & Anr.
Respondents
A N D
REVISION PETITION
NO. 448 OF 1997
(From the order dated 28.2.1997
in F.A. Nos.792 & 735/94
of the State Commission,
Haryana)
M/s.
Vipul Motors Ltd.
Petitioner
Vs.
Mr.
Sudhir Gautam
Respondent
BEFORE:
HONBLE MR. JUSTICE D.P. WADHWA,
PRESIDENT
HONBLE MR. JUSTICE J.K. MEHRA,
MEMBER.
MRS. RAJYALAKSHMI RAO, MEMBER.
MR. B.K. TAIMNI
Delivery of
car - delay - claim for increase in price declined
For the petitioner in RP Nos.974/01, : Mr. K.P. Sunder Rao,
RP 447 & 448/97 and Respondent Advocate
For the Respondent in R.P. 974/01 : Mr. Sanjeev Pandey and
Mr. P.S. Shetty, Advocate.
For the respondent No.1 in RP : N E M O
447/97 and 448/97
ORDER
Dated the 14th December, 2001
PER JUSTICE D.P. WADHWA,
(PRESIDENT).
By this
order we propose to decide four petitions.
In fact there are two sets
of revision petitions. Revision Petition Nos. 974 of 2001 & 985 of 2001 are against a common order of the Rajasthan State Consumer
Disputes Redressal Commission and have been filed by the manufacturer and
dealer of Maruti vehicles. The other
set of petition of Revision Petition No.447 of 1997 and 448
of 1997 is by the manufcturter and
dealer of Maruti vehicle .
Revision Petition No.974/2001 & 985/2001
Respondent No.1-complainant-Goel booked a
Maruti Standard A.C. Car with M/s. Alfa Automobiles, the dealer of
the car manufactured by Maruti Udyog
Ltd. The car was booked on
23.10.90. At the time of registration
Goel paid Rs.35,000/- as fee for booking.
It was on 12.11.90 that without giving any prior intimation to
Goel he was asked to deposit full cost of the car which amounted to
Rs.1,32,889.52. He was required to
deposit this amount by 15.12.90 and in
default to face cancellation of the booking.
On receipt of the letter Goel went to the show room of dealer and met its manager, Bhupinder
Dutt. He was assured that car would be
delivered within 6 to 8 weks after
15.12.90. Goel says he did tell Dutt that he will have to get
Rs. 1.00 lakh from the Bank at high rate of interest. After getting the assurance Goel says he
arranged the money from the market on
interest which he deposited with the dealer on 15.12.90. However, car was not delivered to him as
promised and it was delivered only on 11.7.91. At the time of delivery, however, Goel was asked to pay further
sum of Rs.18,524/- on account of
increase in the price of the vehicle.
Complaining
deficiency in service Goel filed complaint
before the District Forum. Apart
from the claim of Rs.18,524/-, he claimed some other amounts which presently do
not concern us. Both the opposite
parties raised preliminary objections
questioning the jurisdiction of the Consumer Forum and that there was no delay in the delivery of the car as Goel
was told that six to eight weeks
time of delivery was only the
expected time and further the car was delivered to Goel as per his
seniority. District Forum held that
there was deficiency in service and directed the opposite parties to refund to
Goel Rs.18,524/- with interest @ 9% per
annum from the date of deposit till
payment. Compensation of
Rs.5,000/- was also awarded to Goel for
delay in delivery of the car.
He was also awarded cost of Rs.1,000/-.
Aggrieved
both the manufacturer and dealer filed appeals before the Rajasthan State Consumer Disputes Redressal Commission which
dismissed the same with costs.
Still feeling aggrieved both the
manufacturer and the dealer have filed these
separate petitions. When the
opposite parties got the full amount of the cost of the car and promised period of delivery was six to eight weeks
there is clearly deficiency in service in not delivering the car within a period of six
weeks to eight weeks and car was delivered only when cost had increased. Six
to eight weeks period would never mean six to eight months. It is a known fact that in 1990 it was a seller
market for Maruti. Demand of full price before even the car was
ready for delivery would itself amount to unfair trade practice. For having got the full price of the cost
of the car as on 15.12.1990, opposite
parties could not demand further increase in cost if delivery was not made
within six to eight weeks. When the
complainant was promised that he would be given delivery of the car within six to eight weeks, he could not imagine that
delivery could be delayed for a period of six months. It has been rightly held by the State Commission that as far
as Goel was concerned he did
perform his part of the agreement and
failure was on the part of the opposite parties. There has been thus
concurrent finding that there has been deficiency in service inasmuch
as opposite parties failed to deliver
the car within the promised period. We
do not find any error of
jurisdiction otherwise for us
to exercise our jurisdiction under clause (b) of Section 21 of the
Consumer Protection Act, 1986.
Revision Petition Nos. 447/1997 and 448
of 1997
In this
case its is the Sudhir Gautam who was
the complainant. Facts are almost
similar. There has been delay of seven
months in delivery of the car. It has
been held concurrently that delay has
not been explained by the opposite parties.
It is not material as far as
complainant is concerned that at the time of delivery of the car to him
seniority was maintained and that car was delivered to the persons as per the
dates of their respective booking. The
question which arose before the forum
below was that when the petitioners got
full price of the car and told the complainant that expected time of delivery was
six to eight weeks, could be extended to six to seven months. In this case complainant deposited
Rs.1,41,288/- on 3.1.91 with M/s. Vipul Motors Ltd. -dealer and at the time of
delivery of the car on 8.8.91 complainant was asked to pay further amount of
Rs.53,432/-. District Forum allowed the
complaint and directed payment of
Rs.53,432/- with interest from the date
of deposit till payment. There was no
order of any payment of further amount or cost to the complainant. Haryana State Consumer Disputes Redressal
Commission on appeal filed by both the dealer
and the manufacturer upheld the
order of the District Forum and dismissed the appeals and was of the
view that the payment of full amount at
the time of booking was not by way of advance or earnest money but was for cost of the car. State Commission
also referred to a decision of the Supreme Court wherein it was held that over charging of the price by the
dealer by withholding delivery of the vehicle amounted to unfair trade practice which was to be discouraged and the buyer
was to be compensated by the Courts. We
are however, not considering the question of any unfair trade practice on this account in the present case to hold that delivery was intentionally delayed to get higher cost as
there is no evidence to that effect.. Again there has been concurrent finding and
we do not find any jurisdictional error
for us to exercise our jurisdiction
under clause (b) of Section 21 of the Consumer protection Act, 1986.
We may
note that while considering these petitions, we drew strength from the decision of the
Supreme Court in the case of Vikas
Motors Ltd. v. Dr. P.K. Jain [1999(6) SCC 548].
All
these petitions ( Revision Petition
Nos. 974/2001, 985/2001, 447/1997 & 448/1997) are dismissed with cost of Rs.5000/- in each set of
revisions petitions.
.J.
(D.P. WADHWA)
PRESIDENT
..J.
(J.K. MEHRA)
MEMBER
..
( RAJYALAKSHMI RAO)
MEMBER
..
(B.K. TAIMNI)
MEMBER
..
( B.K. TAIMNI)
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI..
REVISION PETITION NO.435 OF 2001
(From the order dated 17.2.2000 in Appeal No.1310/98
of the State Commission, Madhya Pradesh)
Mahindra & Mahindra Ltd. Petitioner
Versus
BEFORE:
HONBLE MR. JUSTICE D.P. WADHWA,
PRESIDENT.
HONBLE MR. JUSTICE J.K. MEHRA,
MEMBER.
MRS. RAJYALAKSHMI RAO, MEMBER.
MR. B.K. TAIMNI, MEMBER.
Central Excise
Act - exemption notification - refund of duty
on vehicle used as ambulance - manufacturer failing to seek refund within time,
deficiency service.
For
the Petitioner : Mr. Aditya Narain, Advocate
For Mr. J.B. Dadachanji & Co., Advocates
For
the Respondent No.1 : Mr. Vipin Gogia, Advocate
For
the Respondent No..2 : Mr. R.S. Chadha, Advocate.
DATED THE 14TH DECEMBER, 2001:
JUSTICE D.P. WADHWA, J. (PRESIDENT)
Petitioner
was opposite Party No.2 before the District Forum, Rewa. He is manufacturer of motor vehicles. Opposite Party No.1 Star Automobiles is its dealer. Complainant who is now first respondent before us filed a complaint in the District Forum
alleging deficiency in service by both the opposite parties. Its case was that it was running a Eye
Hospital in Rewa and for that purpose it purchased a van manufactured by the
petitioner on 3.3. 97 for Rs.3,75,785/-.
The van was purchased from the dealer.
It is not disputed that the van was converted into ambulance and was duly
registered with the RTO, Rewa. After
the vehicle was registered with RTO complainant sent a form duly filled up to the dealer by registered post on 9.5.1997 for payment to
it of the excise subsidy. On
13.11.1997 complainant sent a letter along with permission dated
21.12.1993 from the Health Department
of the State Government of Madhya Pradesh, Rewa Office permitting the
complainant to run Eye Hospital. This was given to the dealer. This was on account of the fact that complainant was entitled to 15% excise
subsidy on the total price after registration of the jeep as
ambulance. In spite of various letters
and visits to the dealer nothing
transpired and ultimately a legal notice was sent by registered post to both the dealer and the manufacturer but
too without effect. This led to the
filing of the complaint.
It was the case of the dealer
that it was merely acting as a post
office and it was for the manufacturer the petitioner to claim refund of the
excise duty from the Central Excise Department. The dealer said it was in turn approaching the petitioner and it was not therefore, negligent. Petitioner denied the claim of the
complainant altogether and said that
the complaint was not maintainable.
The question that arose before the
District Forum was whether
service rendered by the manufacturer and the dealer was deficient.
Complainant led evidence to show that it was guaranteed by the dealer
that it will be entitled to refund of
15% subsidy on registration of the vehicle as ambulance. Since the amount of subsidy was not
refunded to the complainant in spite of his approaching the dealer and manufacturer time and again,
District Forum allowed the complaint and held that complainant was entitled to
Rs.56,367/- as 15% excise subsidy from the dealer and also cost of Rs.500/-.
Against that order of the District
Forum, the dealer filed appeal before
the State Commission. The petitioner-manufacturer was also one of the respondents. State Commission found that it was the responsibility
of the manufacturer for claiming refund of the excise duty and not that of the dealer. State Commission, therefore, modified the order of the District
Forum to the extent it was held that
both the dealer and the manufacturer would be
jointly and severally liable to make the payment. It is also ordered that in case the dealer
make the payment he shall be entitled to recover the same from the
manufacturer. Now it is the manufacturer
feeling aggrieved has filed this petition.
When the matter came up before us for admission we passed the following
order:
Our attention has been drawn to
clause (e) of Exemption Notification
No.66 (Page 39) where exemption has
been granted to ambulance of the Government Hospitals or the Hospitals which
are registered with the Government Department or local authorities. It is stated that the Hospital of the
IInd Respondent/Complainant is not so
registered. However, there is a letter
by which Health Department of the State of Madhya Pradesh has allowed the IInd
Respondent/Complainant to run
the Eye Hospital. Though we issue
notice, we require the Petitioner to apply to the Central Excise Authorities for refund of the Central Excise
duty as permissible under the aforesaid notification. List this Revision Petition on 17.7.2001.
In pursuance of that order
petitioner did apply seeking refund but
that application was rejected by the Deputy
Commissioner, Central Excise vide order dated 24.5.2001. That order has been brought on record, relevant
para of which we reproduce as under:
3. The details of the refund claim, in brief, are that a vehicle falling under Ch. No.87.03 cleared
on payment of duty @ 40% adv., on invoice No.1690 dt. 19.11.96 was subsequently
registered as Ambulance in the name
of Rewa Lions Eye
Hospital, on 13.3.1997 with the R.T.O.
Rewa. According to the notification, (i) the
manufacturer has to furnish a certificate from the R.T.O . to the effect
that motor vehicle has been registered
as ambulance, within three months of the clearance of the said motor
vehicle from the factory or such
extended period as the Asstt. Commr. may allow. In this case, the manufacturer did not request
for extension for this purpose.
(ii) The exemption in case
of ambulance is only applicable for hospitals, nursing homes etc. as the Central Govt. may notify in the Official Gazette. The
vehicle was registered as ambulance in the name of Rewa Lions Eye Hospital.
From a copy of certificate No. 643, issued by the Govt. of Madhya Pradesh, it
seems that the certificate was issued to Lions Club, Rewa, which was
registered on 14.9.1993 under Societies Registration Act, 1973 (S.No. 44 of 1973).
The assessee also filed a copy of letter dated 21.12.1993, issued by the
Chief of Medical and Health Dept. , Rewa, permitting the Lions Eye Hospital,
Rewa to conduct eye related surgeries/operations. However, the manufacturer did not produce any documents
evidencing that the Lions Eye Hospital, Rewa was notified by the Central
Government in the official
Gazette. (iii) The refund claim shoauld be filed in terms
of Section 11-B of the Central Excise
Act.
4. On verification of the refund
claim, it appeared that the refund claim was not filed in time under sec.11-B
iof C.E. Act. And is liable for rejection.
In view of the foregoing, I pass the following order.
ORDER
I reject the refund application
dt. 24.5.2001 filed by the assesses
under section 11-B of Central Excise
Act, 1944.
It
could not be disputed that immediately
the van was registered as ambulance a
letter was addressed by the complainant
to the dealer who had promised that
complainant would be entitled to refund of 15% of the excise duty in case
the vehicle is registered as an
ambulance. Now the dealer says he had
been writing to the manufacturer requiring
it to seek refund. But there was no action on the part of the
manufacturer. It was contended before
us that that Eye Hospital run by the complainant is not totally registered
under the relevant notification General
Exemption No.66 which is issued under
the Central Excise Act, 1944 by the Central Government. It is not disputed that there could not
be refund of excise duty @ 15% in case the vehicle was registered as
ambulence. This exemption applied
under the following circumstances:
43.(a)
.
(e) In the case
of ambulance, the concessional rate of duty shall apply only when the ambulance
is supplied to:
(i) hospitals, nursing homes or
sanatoriums run by the Central Governments or a State Government or a Union
Territory Administration or a local authority, or are registered as such with
(ii) any Department of the Central
Government, or a State Government or a Union Territory Administration or a
local authority; or
(iii) the India Red Cross
Society.
Now
it will be seen from the order of the
Deputy Commissioner that he rejected the claim of the
petitioner-manufacturer who had applied for refund on the ground that claim
application was not filed within time under Section 11-B of the Central Excise
Act.
It is for the first time before this Commission that an issue is
being raised that complainant-Hospital does not satisfy the conditions for claiming
exemption. In our view, case of the
complainant falls within the exemption notification. Even otherwise it has to receive a liberal construction inasmuch
as it is for the benefit of the
patients. But the fact remains that
till we passed the order on 19.3.2001 requring the petitioner to seek refund on
the basis of the notification at no
point of time petitioner ever
informed the complainant that he was
ineligible and no application seeking
refund was at all filed. It is a clear
case of deficiency on the part of the petitioner, the manufacturer. We, therefore, find no
ground for us
to interfere with
the impugned order of
the State Commission in
our jurisdiction under
clause (b) of
Section 21 of
the Consumer Protection Act, 1996. This revision petition is dismissed.
Since
the petitioner was availing stay of the
impugned order we direct that the amount as awarded by the District Forum shall
be paid to the complainant with
interest @ 12% per
annum from the
date of the order of the State Commission till payment. Complainant
shall also be entitled to cost which we assess at
Rs.2,000/-.
J
(D.P. WADHWA)
PRESIDENT
J
(J.K. MEHRA)
MEMBER
(RAJYALAKSHMI RAO)
MEMBER
.
(B.K. TAIMNI)
MEMBER