SHRI. M.K. ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF, Thiruvananthapuram in OP No. 344/2004 order dated: 15.3.2011. The appellant is the 3rd opposite party and the respondents are the complainant and 1st and 2nd opposite parties in the above said OP respectively.
2. The appeal prefers under directions of the Forum below is that the opposite parties shall jointly and severally pay the complaint a sum of Rs.20,000 towards compensation within 2 months from the date of receipt of the order.
3. The dispute in the complaint in connection with purchased an Akai TV Set on 06.07.1998 the 1st opposite party is a dealer. There is a Money back Scheme in which the opposite party promised to refund Rs.30,000/- on 06.06.04, that is an assurance on the money back scheme, opposite party handed over the complainant a post dated cheque dated 22.06.2004, drawn by one Baron International Ltd. on the Siam Commercial Bank, P.C.L, Nariman Point Branch, Mumbai, that the said cheque was presented for payment which was dishonored and returned, that on approaching the opposite party. The opposite party has turned down the request of the complainant to pay the agreed amount that opposite parties has committed unfair trade practice and deficiency in service. At the time of filing the complaint, additional opposite parties 2and3 M/s Akai Electronics IndiaPvt. Ltd, and M/s Baron International Ltd respectively parties in cause title. The notice issued to all opposite parties acknowledged the notice. The 3rd opposite party filed replay and denied the liability. The notice of 1st opposite party returned. Hence to directed the opposite parties to pay the agreed money back scheme amount of Rs.30,000/- with interest along with compensation and costs to the complainant.
4. The 3rd opposite party filed version and contended that interalia that the complainant is not a consumer of the opposite party, that opposite party was a dealer of Akai T.V sets and complainant purchased the said T.V from the opposite party, that opposite party had no role in the money back scheme or in respect of the offer to pay any cash under the scheme. The endorsement in the bill is as per the scheme envisaged and announced by the manufacturer. The opposite party who stands in the capacity of agent is not liable for the acts of the principal, that it was a direct transaction between the consumer and the manufacturer and the cheque was also issued by the manufacturer and the opposite party is in no way responsible for any alleged deficiency in service, that complainant failed to proceed against additional opposite parties who had drawn and issue cheque to the complainant under Sec. 138 of the Negotiable Instruments Acts or by filing civil suit, that complainant has no cause of action for the dishonor of the cheque as against opposite party, that there is no privity of contract between the opposite party and the complainant in the matter. Hence opposite party prayed for dismissal of the complaint.
5. The Forum below heard both parties and perused the entire evidence Exts. P1 to P3 and Exts. D1 to D2 found that the complainant is entitled to get a compensation for this deficiency in service. But the Forum below taken a view that the opposite party dealer who enjoyed the misleading advertisement the aggrieved consumer. Taking into consideration of the totality of circumstance the Forum below fixed liability against all opposite parties as per the settled position of law of contract all are jointly and severally liable for the negligence and carelessness done by any of the parties.
6. The opposite party prefers this appeal under this direction It argued on the grounds of appeal memorandum that the advertisement published by the 1st opposite party and the cheque was issued by the 2nd opposite party. This submission is that all parties (1and2) are severally and jointly liable for the compensation. He submitted that the order passed by the Forum below is against the provisions of law and principles of the evidence. There is no legal explanation to fix the liability against the including 3rd opposite party. But the counsel for the respondent/complainant argued vehemently that all are liable, he said that in the advertisement the manufacturer given the names of the 1st and 3rd opposite parties. The complainant is having a no transaction with 3rd opposite party alone. The cheque was handed over to the complainant by the 3rd opposite party. According to the complainant he need not bother about the rank of the manufacturer and other parties. He submitted that all persons those who directly deal with the complainant in the sale of the TV set all are liable and answerable. The 3rd opposite party who handed over the cheque to the complainant. He is also an active participant in the foul play.
7. The appellant counsel argued that the Forum below passed the order without appreciating the evidence in toto and without the principles of law and evidence. It is liable to be quashed by allowing this appeal but the counsel for the respondent/complainant argued vehemently that the order passed by the Forum below is strictly accordance with the provisions of law and evidence. It is legally sustainable. This order passed strictly accordance with the principle of law and evidence. They are definitely liable for severally and jointly for the deficiency in service and unfair trade practice committed by them.
8. We heard both sides and perused the entire evidence adduced by both sides, we have not seeing any reason to interfere in the order passed by the Forum below. The order passed by the Forum below is strictly accordance with the provisions of law and evidence. It is legally sustainable. We this commission uphold this order.
In the result, this appeal is dismissed and confirmed the order passed by the Forum below.
The points of the appeal discussed one by one accordingly, No cost ordered.