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Vinayakrao Shankarrao Borse v/s M/s. Wasan Auto Sales Pvt. Ltd. & Another

    Revision Petition No. 3431 of 2012

    Decided On, 03 October 2017

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE DR. B.C. GUPTA
    By, PRESIDING MEMBER & THE HONOURABLE DR. S.M. KANTIKAR
    By, MEMBER

    For the Petitioner: Rahul Joshi, Advocate. For the Respondents: Rana Sandeep, Proxy for Shashi Bhushan P. Adgaonkar, Advocate.



Judgment Text

Dr. S. M. Kantikar, Member

1. This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the order dated 21.11.2011 passed in First Appeal No. 81 of 2011 by Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad whereby the appeal of the complainant was dismissed.

2. The complainant, Shri Vinayakarao Shankarrao Borse is stated to have booked new Ford car on 11.4.2000 with M/s Wasan Auto Sales Limited at Aurangabad/OP 2, who is working under control of OP 1 i.e. M/s Wasan Auto Sales Limited at Nasik. The complainant stated that he made full payment of Rs. 5,28,729/- through demand draft of the same date drawn upon the State Bank of India. The complainant also booked one more diesel car on the same date with OP 2, who, in turn asked the complainant to bring demand draft of Rs.6,16,415/- within 2 to 3 days and called to collect both the receipts. Accordingly, the complainant prepared second demand draft worth Rs.6,16,415/- on 13.4.2000 and the same was handed over to the OP 2 on the same day. It is contended by the complainant that the OP assured him for delivery of both the cars within one month. The complainant received the delivery of second car but he did not receive the delivery of car for which he had paid Rs. 5,28,729/-. Upon inquiry about the delivery of another car, the OP 2 on various occasions gave false assurance of delivery of the same within short period. The complainant contacted several times to the OP 2, but OP 2 has neither given the delivery of the car, nor any satisfactory information. Therefore, the complainant issued legal notice to the respondent demanding either delivery of the car or refund of the entire amount with interest. The OP did not respond to the legal notice. Therefore, the complainant filed complaint before the District Forum and prayed for delivery of the said car alongwith compensation of Rs. 2 lakh and costs of Rs. 10,000/-. He also made alternative prayer to refund the entire amount of Rs.5,28,729/- with interest @ 18% per annum from the date of deposit in addition to the compensation as prayed above.

3. The OP filed the written version and denied the claim of complainant in toto. The OP submitted that the complaint was time barred. As the cause of action arose on 10.5.2000, he could have filed the complaint before the District Forum within two years of the cause of action i.e. on or before 9.5.2002 as per Section 24 of the Consumer Protection Act, 1986, but the complainant had filed the complaint after lapse of 3 years 41 days. Hence, it was a time barred complaint. The OP further submitted that the complainant had never paid the alleged amount of Rs. 5,28,729/- towards the booking of the car; therefore, he was not a consumer. Another customer, Mr. Ganesh Ramrao Waghchaure had deposited the amount of Rs.5,28,729/- through the Demand Draft bearing No. 238386 on 11.4.2000 towards the price of Ford Car of the model No. 1.3 CLXI + PS of new paprika red color, which was delivered to Mr. Ganesh Ramrao Waghchaure on 12.4.2000. Hence, there was no deficiency in service.

4. The District Forum after going through the evidence on record held that the complainant failed to prove that he had paid the amount of Rs.5,28,729 vide demand draft No. 238386 towards the purchase of disputed car and dismissed the complaint.

5. Being aggrieved, the complainant filed first appeal before the State Commission, Circuit Bench at Aurangabad, which was also dismissed. Hence, the complainant filed this revision petition.

6. We have heard the learned counsel for both the parties. They have submitted similar averments made in their respective affidavits.

7. We have given our thoughtful consideration to the arguments of the parties. The say of the complainant was that he had given demand draft No. 238386 for Rs.5,28,729/- but, he failed to produce any receipt of the same issued by the OP. There is no evidence that he had taken the demand draft from the State Bank of India. The complainant also failed to produce any evidence affidavit from the State Bank of India that said demand draft was issued at the behest of the complainant. In contrary, OP 2 had produced the car sales certificate issued by Ganesh Ramrao Waghchaure against the receipt of demand draft No. 238386 and the RTO registration certificate also.

8. We have perused the letter dated 23.9.2003 and 9.10.2003 issued by the State Bank of India, Annexure No. P-3 (colly). Both the letters show the amount for both the demand drafts. Nothing was mentioned about other details of demand draft like numbers of demand draft and in whose favour, those were issued. It is a settled legal preposition that powers in the exercise of revisional jurisdiction should be used only if there is a ju

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risdictional error or material defect in the orders passed by the consumer fora below. This view has been expressed by the Hon’ble Apex Court in their judgment in 'Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269]'. In the present case, therefore, there is nothing on record to justify any modification in the orders passed by the consumer fora below. This revision petition is therefore, ordered to be dismissed and the order passed by the State Commission is upheld. There shall be no order as to costs.
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