SHRI. M.K. ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF, Thiruvananthapuram in OP No. 375/2004 order dated : 15.3.2011. The appellant is the 1st opposite party and the respondents are the complainant and 2nd and 3rd opposite parties in the above said OP respectively.
2. The appeal prefers under directions of the Forum below is that to pay Rs.20,000/- as compensation to the complainant by the 1st opposite party/appellant within 3 months from the date of receipt of the order.
3. The dispute in the complaint in connection with purchased an Akai TV Set on 22.07.1998, that 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 22.06.04, 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 party has committed unfair trade practice and deficiency in service. After filing the complaint, additional opposite parties 2and3 M/s Akai Electronics IndiaPvt. Ltd, and M/s Baron International Ltd. were impleaded as per order dated 22.08.2009. There after on petition filed by the complainant, additional opposite parties 2 and 3 were removed from the party array vide order dated 29.05.2010. Hence this complaint to direct opposite party to pay the agreed money back scheme amount of Rs.30,000/- with interest along with compensation and costs to the complainant.
4. The 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 the dealer 1st opposite party alone and there is no compensation ordered against the opposite party 2 and 3.
6. The opposite party prefers this appeal under this direction and he argued on the grounds of appeal memorandum is that the advertisement published by the 2nd opposite party and the cheque was issued by the 3rd opposite party. This submission is that all parties (1,2,3) are severally and jointly liable for the compensation. He submitted that the order passed by the Forum below as against the provisions of law and principles of the evidence. There is no legal explanation to dishonorate the 2nd and 3rd opposite parties. But the counsel for the respondent/complainant argued vehemently that they are not liable, he said that in the advertisement the manufacturer given the names of the 1st and 3rd opposite parties. The complainant is having a transaction with only 1st opposite party. The cheque was handed over to the complainant by the 1st opposite party. According to the complainant he need not both about the manufacturer and other parties. He considered only the person who directly deals with the complainant in the sale of the TV set. 1st opposite party accepted the money and he explained of the scheme and handed over the cheque also so he is liable.
7. We heard both sides and peruse the entire evidence, the 1st and 2nd opposite parties impleaded is a necessary parties before the Forum below. Later the complainant filed a petition to delete 2nd and 3rd opposite parties from the cause title. The complainant have no right to pick on choose any particular person or persons as per his will and pleasure for fixing the liability. Suppose the complainant who moved a petition before the Forum below that to delete in 2nd and 3rd opposite parties from the case title. The Forum below need not be passed in such an order. Forum below is a fact finding body must be considered every aspects on the basis of the principles of law and evidence. There is no doubt that the 2nd and 3rd opposite party are definitely liable for the compensation to the complainant along with the 1st opposite party. Unless they are not parties in the OP; this commission is not in a position to modify the order passed by the Forum below and to fix to joint liability to all the opposite parties. In the circumstance, only remedy available to remand back this matter to the Forum below for a fresh disposal with a direction that to give an opportunity to the complainant to implead the 2nd and 3rd opposite parties and also direct to disposes the complaint after giving an opportunity to 2nd and 3rd opposite parties before passing order. The contention raised by the respondent/complainant is very strange. The 2nd and 3rd opposite parties are not easily available. It is the reason for avoid them from the prayer portion. It is against the provisions of law and the principles of evidence. It is the duty of the complainant to take necessary steps to implead the 2nd and 3rd opposite parties including substitute service etc.
In the result, this appeal is allowed in part and set aside the order passed by the Forum below. This case remanded back to the Forum below for fresh disposal after comply above directions of this commission. The parties are direct to appear before the Forum below on 27.1.2012 at 10.30 am.
Â The points of the appeal discussed one by one accordingly, No cost ordered.