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Snow View Automobile Pvt. Ltd. H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9.
F.A. No. 63 of 2009
Decided on 6.4.2009.
Sh. Pawan Singh Dogra
S/o Sh. S.C.Dogra,
R/o Village Jijwin, Tehsil Bhoranj,
District Hamirpur, H.P.
.....Appellant.
Versus
1. Snow View Automobile Pvt. Ltd.,
Opp. Govt. Printing Press Main Highway,
Ghora Chowki, Shimla-171005, Authorised
dealer of Mahindera & Mahindera Ltd.
through its Proprietor Sh. Pavan Mittal
S/o Sh. Janesh Mittal, R/o Snow View
Automobile Pvt. Ltd. opp. Govt. Printing Press
Main Highway, Ghorachowki, Shimla.
2. Snow View Automobile Pvt. Ltd.,
through its General Manager Sh. Chander Khosla
S/o not known, R/o Snow View Automobile
Pvt. Ltd. opposite Govt. Printing Press,
Main Highway, Ghora Chowki, Shimla-171005.
3. Snow View Automobile Ltd. through
its General Manager Sales, Sh. Jagmohan Singh
S/o Not known, R/o Snow View Automobile
Pvt. Ltd. opposite Govt. Printing Press,
Main Highway, Ghora Chowki, Shimla-171005.
4. Mahindra Ranault Pvt. Ltd. through its
General Manager, R/o Registered Office :
Mohindera Ranault Private Ltd. Gateway
Building Appollo Bander, Mumbai-400039. ….Respondent.
----------------------------------------------------------------------------------------
Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.
Hon’ble Mr. Chander Shekher Sharma, Member.
Whether approved for reporting ?
For the Appellant. Mr. L.S.Mehta, Advocate
For the Respondents. Mr. Rahul Mahajan, Advocate
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ORDER
Justice Arun Kumar Goel (Retd.) President.
1. Respondents are duly served in terms of the order dated
20.3.2009. One counsel was appearing for all the respondents before the District Forum below in the complaint. Notice was ordered to be served upon the respondents through respondent No.1, and all of them are served. Complaint was dismissed for default of appearance as is evident from the order dated 7.1.2009, passed by District Forum below while dismissing the complaint No. 129/2008.
2. Sh. Mahajan submitted that facts detailed in this appeal are not factually correct as they are not in consonance with the order, which is the subject matter of this appeal. Therefore, according to him, this appeal is liable to be dismissed with cost.
3. We are of the view that in the event of impugned order being set aside, all that the appellant will get is that his complaint will be heard on merit and nothing more. In our opinion to put an end to the litigation between the parties, it is desirable as well as necessary in the interest of justice that the impugned order be set aside and parties relegated back to the stage at which the complaint was dismissed for default of appearance on behalf of the appellant-complainant. On the other hand if the impugned order stands, it will deny adjudication of the complaint of the appellant on merits. We may clarify here that litigant should come clean to the court. For improper pleadings on the part of the learned counsel, litigant should not suffer. We leave the matter here only on this aspect while allowing this appeal and setting aside order dated 7.1.2009, passed by District Forum, Shimla in Complaint No. 129/2008, subject to the payment of Rs. 1,000/- as cost. Sh. Mahajan, Learned counsel for the respondents submitted that 50% of the amount of cost be ordered to be paid to the Shimla Consumer Court Bar Association for purchase of books and remaining 50% of the amount be deposited with the State Commission towards Legal Aid Fund. This submission on behalf of the respondents is accepted. Ordered accordingly. Since record is here, parties through their learned counsel are directed to appear before District Forum below on 4.5.2009.
4. Office is directed to send the file to the District Forum below well before the date fixed. On this date appellant shall produce proof of having deposited the amount in terms of this order. In case proof is not produced before the District Forum below, this appeal shall stand dismissed.
5. Learned counsel for the parties have undertaken to collect the copy of this order free of cost from the Court Secretary as per Rules.
(Justice Arun Kumar Goel) Retd.
President
(Chander Shekher Sharma)
Member
Suneera
6.4.2009.
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9.
F.A. No. 212 of 2007
Decided on 4.3.2009.
National Insurance Company Limited,
Divisional Office, Himland Hotel,
Circular Road, Shimla through its
Assistant Manager.
.......Appellant.
Versus
Sh. Om Parkash S/o Bhagat Ram,
R/o Vill. & P.O. Behang,
Tehsil Manali, District Kullu, H.P.
…… Respondent.
----------------------------------------------------------------------------
Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.
Hon’ble Mrs. Saroj Sharma, Member.
------------------------------------------------------------------------------
Whether approved for reporting ?
For the Appellant. Mr. Jagdish Thakur, Advocate
For the Respondent. Ms. Suvrata, Advocate
Mr. Davinder Singh, Licensing
Clerk from the O/o RLA Kullu is
present in person.
------------------------------------------------------------------------------------
ORDER
Justice Arun Kumar Goel (Retd.) President.
1. As ordered on 25.8.2008 and 10.11.2008, Sh. Davinder Singh, Clerk from the O/o Registeration and Licencing Authority, Kullu is poresent with the original record relating to Driving Licence of Driver Shesh Ram, S/o Sh. Dewat Ram, R/o Village Goshal, P.O. Behang, Tehsil Manali, District Kullu, H.P. We have examined this original record. As per entries in the register of Driving Licence, Shesh Ram was issued driving licence on 13.6.1994 which was valid upto 2024. He was licenced to drive LMV (non transport). This position could not be disputed on behalf of the appellant. However, Sh. Thakur on behalf of the appellant stated that his client had got the licence verified as per copy of driving licence provided by the respondent to his client.
2. We are of the view, that in the face of the decision of Hon’ble Supreme Court of India in the case of National Insurance Company Ltd. V/s Annapa Irappa Nesaria Alias Nesaragi and Others (2008) 3 Supreme Court Cases 464, the decision of this Appeal need not detain us. Reason being that the admittedly driving licence in question was issued in favour of Shesh Ram before 28.3.2001 i.e the date when Central Motor Vehicle Rules, 1989, whereby Form No. 4 of the Central Motor Vehicle Rules was amended.
3. Crux of this decision is that the licences issued prior to 28.3.2001 to drive LMV without endorsement to drive a transport vehicle, can also drive a transport vehicle. Faced with this situation Sh. Thakur was not in a position to stress his submissions further as set out in the grounds of appeal.
4. In view of the aforesaid factual position and keeping in view the decision of the Hon’ble Supreme Court, this appeal deserves to be dismissed. Ordered accordingly. Consequently all interim orders passed from time to time shall stand vacated forthwith. No costs.
5. Learned counsel for the parties have undertaken to collect the copy of this order free of cost from the Court Secretary, as per Rules.
(Justice Arun Kumar Goel) Retd.
President
(Saroj Sharma)
Member
Suneera
4.3.2009
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA-9.
F.A. No. 177 of 2008
Decided on 3.3.2009.
M/s Rattan Fruit Company,
Fruit and Vegetable Commission Agent,
Shop No. 24, New Subzi Mandi,
Bye Pass Solan,
Himachal Pradesh through its Proprietor.
.....Appellant.
Versus
Sh. Rajinder Singh Chauhan,
S/o Sh. Tikkam Dass Chauhan,
Resident of Village Padara,
Post Office Throla, Tehsil Kotkhai,
District Shimla, H.P.
…… Respondent.
-----------------------------------------------------------------------------
Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.
Hon’ble Mrs. Saroj Sharma, Member.
------------------------------------------------------------------------------
Whether approved for reporting ?
For the Appellant. Mr. Peeyush Verma, Advocate
For the Respondent. Mr. S.S.Roach, Advocate
------------------------------------------------------------------------------------
ORDER
Per Mrs. Saroj Sharma, Member.
1. Questions involved in the present appeal for consideration are, whether the respondent is a consumer within the meaning of section 2(1)(d) of the Consumer Protection Act, 1986; whether there is consumer dispute; and whether the appellant was rendering any service for consideration and is a service provider and if so, then its effect.
2. In order to determine all these questions, brief facts need to be noted here from the complaint file. Respondent is an orchardist having orchards at Padara. He forwarded 150 apple cases by the name of K.B. Padara, and 16 apple cases by the name of ACO Padara for sale to the appellant. Appellant sold these boxes and did not pay the amount to the respondent despite notice. Thus the appellant committed deficiency in service by not making the payment of the sale proceeds. Complaint was filed by the present respondent for a direction to the appellant to pay Rs. 67,825/- as sale price of apple produce alongwith interest @ 12% per annum w.e.f 15.9.2005 alongwith compensation amounting to Rs. 10,000/-, as well as litigation cost. The complaint was allowed and the appellant was directed to pay Rs. 67,825/- to the respondent alongwith interest at the rate of 9% per annum w.e.f date of filing of the complaint i.e. 2.8.2006 till the actual payment is made, and Rs. 3000/- as litigation cost. These payments were ordered to be made within 45 days of the receipt of copy of the impugned order.
3. Feeling aggrieved with the impugned order, the appellant has filed this appeal. The complaint was contested by the appellant. According to him, the complaint was neither maintainable nor there was a consumer dispute within the meaning of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986. There was no consumer dispute between the parties.
4. We have heard learned counsel for both the parties, as well as have gone through the record of the complaint file. Counsel for the appellant submitted neither the respondent is a consumer nor his client is a service provider. He further argued that in case this plea is not accepted, then the service was provided free of charge by his client. There was no consideration received for rendering service to the respondent. Further there was no question of appellant’s having indulged into unfair trade practice. Further according to the appellant’s learned counsel, it is purely case of settlement of accounts. Thus he prayed for allowing the appeal by setting aside the impugned order and consequently dismissing the complaint while allowing this appeal.
5. These pleas were seriously contested by learned counsel for the respondent. According to him, this is a case of pure and simple deficiency in service on the part of appellant who after selling the apple boxes, did not pay the sale price to the respondent. So by doing so, the appellant indulged into unfair trade practice. Appellant being a service provider was under obligation to account for the sale proceeds. So there is deficiency in service also on the part of the appellant.
6. In order to be a consumer it is the duty of the respondent to show that he hired the services of the appellant and the same were for consideration. But in the present case, there is nothing on record to suggest that any consideration was paid/settled by the respondent to be payable to the appellant for hiring his services and as such the service rendered was free of any charge. So this cannot be termed as service for consideration. So question of deficiency in service does not arise. No service was hired for consideration. The appellant is not rendering any service within the meaning of Section 2(1)(o) of the Consumer Protection Act, 1986. For ready reference, this sub section is extracted hereinbelow :-
“ “Service” means service of any description which is made available to potential [users and includes, but not limited to, the provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”
7. So we are of the considered view that the respondent was not a consumer when he sent the apple boxes for sale to the appellant. We are further of the view that the sale of apple boxes was being affected free of charge by the appellant. As such there is no deficiency in service within the meaning of Section 2 (1)(o) of the Consumer Protection Act. The case is squarely covered by the order passed in F.A. No. 01/2008 decided on 2.2.2009 titled as Chuni Lal Prop. V/s Madan Sharma, by this Commission, which is nearer to the facts of the present appeal.
8. In view of the above discussion, while allowing this appeal, we hold that the appellant was neither a service provider nor the respondent is a consumer and that it is not a case of deficiency in service. Consequently the present appeal is allowed and order passed by the District Forum, Shimla, in complaint No. 229/2006, dated 7.1.2008 is hereby quashed and set aside and the complaint is dismissed. It is however clarified that the dismissal of the complaint will not debar the respondent from taking such recourse under law for redressal of his grievances against the appellant as is available to him under the ordinary law of the land and in such a situation, he will be entitled to the benefit of Section 14 of the Limitation Act.
9. All interim orders passed from time to time shall stand vacated forthwith.
10. Learned counsel for the parties have undertaken to collect the copy of this order free of cost from the Court Secretary as per Rules.
(Justice Arun Kumar Goel) Retd.
President
(Saroj Sharma)
Member
Submit Complaint..
