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BIHAR STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, PATNA
Hon’ble Mr. Justice A.N. Chaturvedi,
President & Mr. V.N. Mishra, Member
STATE OF BIHAR & ORS.—Complainants
versus
M/S. MAGADH MOTORS & ORS.—Opp. Parties
Complaint No. 147 of 1993—Decided on 10.9.1998
Held: Before we enter into the merit of the case we would like to discuss the preliminary objection on maintainability point. Since adjudication in complaint case No. 15/92 had not been done by the State Commission as it was not a competent court arid since the aforesaid complaint case had been withdrawn on point of jurisdiction by the complainant with liberty to file fresh case before appropriate forum, principle of res-judicata in our view, will not be attracted in this case. We are fortified by the judgment of Supreme Court in State of Maharashtra v. M/s. National Construction Company, Bombay, AIR 1996 SC 2367 wherein it has been held that the bar under Section 11 of CPC applied only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a court competent to try such suit. Final adjudication had not been made in the complaint case No. 15/92.
The present complaint case therefore will not be hit by the principle of res-judicata. (Para 8)
(ii) Consumer Protection Act, 1986 - Section 2(1)(c)(III)(g) - Complaint - Deficiency in service - Non supply of 4 jeeps inspite of advance payment and retention of the amount by O.P.No. 1 - Neither any liability can be fastened nor can OP Nos. 2 and 3 held responsible for deficiency in service as pre-payment not made to them - Compensation disallowed ns loss not quantified - OP No. 1 as represented by OP No. l(a) and l(b) to refund Rs. 6,03,466,60 P with interest and Rs. 12% p.a.
Held: The balance amount remained with O.P. No. 1. No amount was passed on to O.P. No.2 and O.P. No.3 for supply of remaining jeeps, According to the conditions for supply of jeeps by manufacturer pre-payment in full was required to be made to them. When payment was not made to O.P. No.2 and O.P. No.3, they were not obliged to supply the vehicles. There is thus no deficiency in service on the part of O.P. No.2 and O.P. No. 3 when no consideration amount was paid to them. (Para 11)
But the letters of O.P. No.2 clearly show that the vehicles were readily available with them to be supplied on pre-payment. Pre-payment had not been made to O.P. No.3 and therefore vehicles could not be delivered to the complainants. This not only shows gross deficiency but also willful misconduct and fraudulent practice on the part of O.P. No.1 for which the complainants would have fairly been entitled for compensation. But no pains were however taken by the complainants to quantify the loss suffered by the department due to non-delivery of the vehicles by O.P. No.1. The evidence adduced by the complainants also does not disclose any basis for ascertaining the amount of compensation. In the circumstances it is difficult to grant any amount by way of compensation. (Para 13)
Result: Complaint allowed.
Mr. V.N. Mishra, Member—The present complaint case has been filed by the State of Bihar through Commissioner-cum-Secretary, Department of Excise Prohibition, complainant No. 1 and Special Superintendent of Excise, EIB, complainant No. 2 against M/s. Magadh Motors, opposite party No. 1 through its partner Manoj Kumar, opposite party No. 1(a), Sunil Kumar Verma, opposite party No. 1(b). Area Sales Manager, M/s. Mahindra & Mahindra Ltd., Patna, opposite party No. 2 and M/s. Mahindra & Mahindra, Marketing Department, Automotive Product Group, Bombay, opposite party No. 3 with a prayer to direct the opposite parties to refund Rs. 6,03,466.60 with interest with effect from 25.5.1990 and reasonable compensation for non-supply of vehicles against advance payment.
2. The facts of the complaint case in brief are that Magadh Motors, opposite party No. 1 sent a quotation to the Secretary to Commissioner of Excise, Government of Bihar for supply of one Mahindra & Mahindra, Model 640 DP. Diesel jeep quoting Rs. 1,50,618.38. The Deputy Commissioner, Excise, EIB thereupon asked for proforma bill vide his letter No. 2 dated 30.3.1990. Proforma bill for Rs. 7,53,081.90 for supply of five jeeps in response was submitted by opposite party No. 1 on 30.3.1990 itself. Payment of Rs. 7,53,082/- was made to opposite party No. 1 on 26.5.1990 by the complainant through Bank Draft. According to the complaint petition, the opposite party No. 1 supplied one number of jeep after receiving payment but did not care to supply the remaining four number of jeeps in spite of assurance for quick delivery of the vehicle. Complainant No. 2 then wrote to opposite party No. 2 on 6.8.1990 to take necessary steps to ensure immediate delivery of jeeps. This was followed by another letter dated 13.8.1990 addressed to opposite party No. 1 with a copy to opposite party No. 2 and opposite party No. 3. In response opposite party No. 2 assured vide his letter dated 11.8.1990 that the supply of jeeps would shortly be arranged through the dealer who had received payment as jeeps are readily available in their stock. M/s. Magadh Motors will have to collect them and deliver the same to the complainants. Opposite party No. 1 thereafter assured the complainants for supply of the vehicles within a fortnight vide their letter No. M/50-51 /131 dated 5.8.1990. The opposite party No. 1 again only after 13 days on 18.8.1990 informed that the vehicles would now be supplied by 26-28th August, 1990. Supply of vehicles could not be made within that period. The opposite party No. 1 once again vide their letter No. MM/90-91/186 dated 29.11.1990 assured to supply the vehicle within one month. But opposite party No. 1 vide their letter dated 15.2.1990 informed the complainant that because of unforeseen circumstances they could not supply the vehicles. They however assured to supply three jeeps by 15th March, 1991. But inspite of assurance jeeps were not supplied. Opposite party No. 1 vide letter dated 10.1.1991 wrote to the complainant No. 2 that in view of change in sales tax structure w.e.f. 16.11.1990 they would not be in a position to supply the vehicle to the complainant @ 30% Bihar Sales Tax and advised complainant to write to M/s. Mahindra & Mahindra Ltd. for supply of one number of jeep of the above model for which payment will be made by opposite party No. 1. Accordingly complainant No. 2 wrote to opposite party No. 2 enclosing Form IX A for supply of jeep of the said model but no supply of jeep except one made earlier was made. Rest of the vehicles have not been supplied in spite of several reminders of the complainant and assurance of opposite parties. It is alleged that opposite party No. 2 changed his stand and said that he cannot supply the vehicles due to change in tax policy of the State and only manufacturers could supply the vehicles. Since supply of four jeeps could not be made by the opposite parties, the complainants have demanded refund of Rs. 6,03,466.60 with current ra
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