Maruti Udyog Limited - Appellant
Versus
Alchemi Corporation - Respondent
Decided On : 02/09/1998
Appeal No. 448 of 1996
Advocates Appeared :
Mr. H.J. Thakkar,Ms. Siddhi Talati,Mr. M.A. Bhatt

Headnote:(i) Consumer Protection Act, 1986 - Section 15 – Appeal - Section 2(i)(d) - 2 (l)(d)(ii) - Consumer - Hiring of service - Commercial Purpose - Jurisdiction of - Maintainability - Plea not raised before District Forum cannot be allowed at belated appellate stage deemed to have been waived - Complaint governed by Section 2(i)(d)(ii).

       Held: Now whether Kalpanaben N. Patel filed the complaint in her personal capacity or whether she filed for and on behalf of M/s. Alchemi Corporation is a disputable question unless specifically raised and challenged cannot be permitted to be taken at this appellate stage at her back and that too to her greater prejudice after about four years. It is no doubt true that in complaint the title shows M/s. Alchemi Corporation by its Proprietor Kalpana Naranbhai Patel etc. But this can as well as be by way of her position in MI s. Alchemi corporation, What ought we do not know that may be so Accordingly had this question been raised at the right place and right time the complainant Kalpanaben would have a fair and reasonable opportunity to controvert the same showing that it was for her personal use and accordingly was a “consumer” within the definition meaning of Section 2(1)(d)(i) of the Consumer Protection Act, Apart from this for the time being for the sake of argument and accordingly assuming without admitting that even if we were made to convince that the respondent complainant having purchased the car in question for the ‘commercial purpose’ and accordingly the District Forum ought not have exercised jurisdiction - then even such an important point having not been raised, we would not allow the appellant to raise the same for the first time at such a belated and appellate stage mainly on five grounds firstly that the party cannot be permitted to take advantage of its own indolence, lapse and wrong to score the point against the adversary at its back. Secondly, had this contention been taken at the earliest, if the same had indeed any substance the complainant ultimately realising the mistake of wrongly invoking the jurisdiction of the Consumer Disputes redressal Forum would have perhaps withdrawn the complaint and filed appropriate suit before the Civil Court seeking the redressal of her grievance against the appellant company ?

       Thirdly, the opponent - appellant herein is a leading car manufacturing company which had appeared through its learned advocate to be defended against the relief’s prayed for by the complainant. Accordingly, but for the fact that there was no substance, in the point viz. the complainant purchased the car for ‘commercial purpose’ and accordingly, the C.D.R. Forum had no jurisdiction., the learned advocate would not have missed to raise such an elementary, simple and important preliminary point going to the root of the jurisdiction of the District Forum to try the case. Fourthly, having failed to raise the preliminary issue before the District Forum in cases like the present one, then remotely even perhaps there was some substance in this contention, then even now for mere recovery of Rs. 60,000/ - with the interest added to it to ask the complainant after, about five years to go to the civil court would be quite unfair, harsh, and inequitable, not being just and expedient in the over all interest of the justice. Not to specifically take up the contention requiring the detailed investigation of the fact at any stage during the course of the proceedings rather acquiescing in the matter and then when the matter came to be decided against it by final judgment and order, after 4 long years to rake up the contention for the first time at the appellate stage is quite unjust and harsh for this in a way perhaps if not taking away, atleast to some extent prejudices and defeats the right of the complainant to take the legal action for refund of money and damages etc. in the civil court delaying justice to the complainant for no fault of her. The litigation of the type at hand cannot be permitted to be an irresponsible fun game of hide and seek and accordingly the contention in a given case even if genuine cannot be permitted to be a matter of scheming device and strategy to harass the complainant and that too in a quasi judicial Forum. Whosoever takes it as a game and strategy abusing the process of law must suffer. This Commission if it allows such contentions which could and should have been raised before the City Forum at the earliest more particularly when the opponents were represented by lawyer, then in that case. it would be indirectly a party in the abuse of the Appellate Forum. We make it clear that the technical contention of the type raised by the appellant in this appeal cannot be given any handle to act contrary to the justice, equity and conscience which ought to be and is the prime concern of quasi-judicial body like C.D.R. Agencies. In this view of the peculiar facts of the case it appears to us that if we causally entertain such an objection which could should and accordingly ought to have been taken on the first date of the filing of the reply, we are afraid of sometimes playing in the hands of scheming parties permitting it to take advantage and benefit of its own wrong. Such points at belated appellate stage cannot be permitted to be taken in order to spring surprise and bring about prejudice to the complainant and accordingly must be deemed to have been waived or not taken. Not only this but taking overall view of the matter having regard to the neat point of law namely the deficiency in service and resultant inescapable ultimate order of refund of excess amount with interest and the cost, there is hardly anything on the basis of which the appellant could satisfy any court to the contrary. Fifthly it appears that since the complainant has not made any grievance in respect of any manufacturing defect in car she purchased, perhaps the question whether it was purchased for the ‘commercial purpose’ or not pales into total insignificance and accordingly the complainant would be governed not by the definition meaning of ‘consumer’ given in Section 2(1) (d) (o) of the Act but it will be governed by Section 2(1) (d) (ii) of the Act which pertains to the hiring of service, where no such disqualifying ground as commercial purpose referred to exclude the complainant from coming within the jurisdiction under the Act. (Para 7.2)

       (ii) Consumer Protection Act, 1986 - Section 15 - Appeal - Sections 2(i)(g)(o) and 2( l)(r) - Deficiency in service - Unfair trade practice respectively - Whether there is deficiency in service or the alleged unfair Trade practice in not delivering the car within the promised period of six weeks after full payment?

       Held: In fact, the appellant is well known company of India. When a particular conduct on its part amounts to deficiency in service and unfair trade practice as now well established by settled legal position in the first instance it must avoid any allegation of deficiency in service and unfair trade practice and if for whatever reason that is not done, then atleast when the complaint is filed they should better realise the real stock of the situation and must be fair enough to admit their position instead of raking up false contentions refuting the grievance voiced by the complainant. If, in a given case if the District Forum and for that purpose even the State Commission, it feels that it has become a practice on the part of the company to be deficient in service and then when challenged before the Court instead of fairly admitting the situation, resists it, the Commission may be constrained to give exemplary cost with a view to see that it deters in future from harassing the customers when it is the duty of every Consumer Disputes Redressal Agency to protect them at any cost. (Para 8)

       Further held: There is indeed no doubt in our mind that though there is nothing in writing establishing any promise to deliver the car within 5-6 weeks given Support of the complaint, even then, applying the test of probability we believe the words of the complainant and hold that it clearly amounts to the implied promise of delivering the same within 5-6 weeks as alleged, before there was any price hike as a result of new budget. In this view of the promise not to deliver the car within the time promised is positively deficiency in service on the part of the appellant company towards the respondent complainant. When such is the unescapable legal position, the City Forum cannot be said to have in any manner acted illegally in directing the appellant herein to refund the additional amount of Rs. 61,035,29/- taken under protest from the complainant alongwith the compensation of Rs. 5,000/- etc. (Para 9)

       Result: Appeal dismissed with costs.