LAW FOR ALL

Saturday, February 19, 2011

how to fix compensation in motor accident cases

   REPORTABLE

   IN THE SUPREME COURT OF INDIA

   CIVIL APPELLATE JURISDICTION

   CIVIL APPEAL NO.1923-1924 OF 2011

   (Arising out of SLP (Civil) No.16406-16407 of 2010)

Sri. K.R. Madhusudhan & Ors. ...Appellant(s)

   Versus

The Administrative Officer & Anr. ...Respondent(s)

   J U D G M E N T

GANGULY, J.

1. Delay condoned.

2. Leave granted.

3. On 4.10.1998, at about 8.55 a.m., V.

   Rajagopalaiah was crossing the road near Ashraya

   Hotel, B.M. Road, Channapatna, when a Maruti Van

   (owned by the first respondent) bearing

   registration No. KA-05-A-2535 came at a high

   speed and dashed against the deceased, causing

   1

   severe injuries. He was taken to hospital, but

   he succumbed to his injuries.

4. The deceased was of 53 years of age and was

   survived by his wife and three sons, the present

   appellants. They filed a claim petition under

   Section 166 of the Motor Vehicles Act, 1988

   claiming Rs.20,00,000/- as compensation. It was

   contested by the respondents.

5. Motor Accident Claims Tribunal (hereinafter

   "MACT") found that the death of V. Rajagopalaiah

   was due to the rash and negligent driving of the

   van driver (the second respondent). The deceased

   was working as Senior Assistant in Karnataka

   Electricity Board (hereinafter "KEB") and his

   last drawn gross monthly salary was Rs.15,642/-

   i.e. Rs.1,87,704/- annually. 1/3rd was deducted

   for personal expenses, after which the amount

   came to Rs.1,25,136/-. As deceased was 53 years

   of age, a multiplier of 11 was applied. The

   Tribunal also awarded funeral and transport

   expenses amounting to Rs.10,000/-, medical

   2

   expenses prior to death was Rs.6,000 and

   compensation for loss and affection at

   Rs.25,000/-. Accordingly, total compensation

   awarded was Rs.14,27,496/- along with interest

   of 9% p.a.

6. The appellants and the respondents both appealed

   against the award of the Tribunal to the High

   Court of Karnataka. The appellants appeared for

   enhancement and the respondents for reduction of

   the amount awarded. The High Court, in its

   impugned judgment, reduced the compensation

   awarded by the Tribunal to the appellants to

   Rs.11,82,000/-. The relevant portion of High

   Court order reads as follows:

   "The deceased was working as Senior

   Assistant in KEB getting a salary of

   Rs.15,642/-. After effecting

   deductions towards income tax, the net

   salary of the deceased would be

   Rs.14,000/-. The mother and sons of

   the deceased have filed claim

   petition. 1/5 is to be deducted

   towards personal expenses. Rs.11,200/-

   would enure to the benefit of the

   dependants. The deceased was aged

   about 52 years. The deceased would

   have retired by 58 years. After

   superannuation, the deceased would get

   3

   pensionary income in a sum of

   Rs.6000/-. 1/5 is to be deducted

   towards personal expenses. Rs.4800/-

   would enure to the benefit of the

   dependants. Split multiplier would

   apply. After superannuation,

   multiplier 6 would apply. Therefore,

   the total loss of dependency before

   superannuation would be Rs.8,06,400/-

   (Rs.11200 (income) X 12 (months) X 6

   (multiplier). The total loss of

   dependency from the pensionary income

   would be Rs.3,45,600/- (Rs.4800/-

   (income) X 12 (months) X 6

   (multiplier). The total loss of

   dependency would be Rs.11,52,000/- The

   petitioners are entitled for a sum of

   Rs.25,000/- towards loss of expectancy

   and Rs.10,000/- towards funeral

   expenses. In all the petitioners are

   entitled for a total sum of

   Rs.11,82,000/- as against

   Rs.14,27,496/- awarded by the

   Tribunal. The petitioners are entitled

   for interest at 6% p.a."

7. Assailing the same, the appellants contend that

   the future prospects of the deceased and

   revision in salary were not taken into

   consideration by the High Court and a split

   multiplier should not have been adopted.

8. The law regarding addition in income for future

   prospects has been clearly laid down in Sarla

   4

Varma (Smt.) & Others v. Delhi Transport

Corporation & Another [(2009) 6 SCC 121] and the

relevant portion reads as follows:

   "In Susamma Thomas this Court

   increased the income by nearly 100%,

   in Sarla Dixit the income was

   increased only by 50% and in Abati

   Bezbaruah the income was increased by

   a mere 7%. In view of the

   imponderables and uncertainties, we

   are in favour of adopting as a rule of

   thumb, an addition of 50% of actual

   salary to the actual salary income of

   the deceased towards future prospects,

   where the deceased had a permanent job

   and was below 40 years. [Where the

   annual income is in the taxable range,

   the words "actual salary" should be

   read as "actual salary less tax"]. The

   addition should be only 30% if the age

   of the deceased was 40 to 50 years.

   There should be no addition, where the

   age of deceased is more than 50 years.

   Though the evidence may indicate a

   different percentage of increase, it

   is necessary to standardize the

   addition to avoid different yardsticks

   being applied or different methods of

   calculation being adopted. Where the

   deceased was self-employed or was on a

   fixed salary (without provision for

   annual increments etc.), the courts

   will usually take only the actual

   income at the time of death. A

   departure therefrom should be made

   only in rare and exceptional cases

   involving special circumstances."

   5

9. In the Sarla Verma (supra) judgment the Court

   has held that there should be no addition to

   income for future prospects where the age of the

   deceased is more than 50 years. The learned

   Bench called it a rule of thumb and it was

   developed so as to avoid uncertainties in the

   outcomes of litigation. However, the Bench held

   that a departure can be made in rare and

   exceptional cases involving special

   circumstances. We are of the opinion that the

   rule of thumb evolved in Sarla Verma (supra) is

   to be applied to those cases where there was no

   concrete evidence on record of definite rise in

   income due to future prospects. Obviously, the

   said rule was based on assumption and to avoid

   uncertainties and inconsistencies in the

   interpretation of different courts, and to

   overcome the same.

10. The present case stands on different factual

   basis where there is clear and incontrovertible

   evidence on record that the deceased was

   entitled and in fact bound to get a rise in

   6

   income in the future, a fact which was

   corroborated by evidence on record. Thus, we are

   of the view that the present case comes within

   the `exceptional circumstances' and not within

   the purview of rule of thumb laid down by the

   Sarla Verma (supra) judgment. Hence, even though

   the deceased was above 50 years of age, he shall

   be entitled to increase in income due to future

   prospects.

11. We base our conclusion on our findings from the

   records of the case. The evidence of PW.1, the

   son of the deceased, is that there are four

   claimants, three of them are the sons of the

   deceased and the other claimant is paternal

   grand-mother. Therein, he stated that the

   deceased was the only bread earner of the

   family. It was stated by PW.1 that if his

   father, the deceased, would have been alive he

   could have got promotion and could have received

   the salary of Rs.20,000/- per month.

   7

12. PW.3, who was the Senior Assistant in KEB, in

   his evidence also stated that the deceased was

   52 years of age at the time of his death and he

   was having six years of service left. The annual

   increment is Rs.350/-. In the year 2003 (which

   would have been year of retirement), the basic

   pay of the deceased would have been around

   Rs.16,000/- and in all he would have obtained

   gross salary of Rs.20,000/- per month. PW.3

   deposed that as per the Board Agreement for

   every five years their pay revision is

   compulsory. Both the witnesses were cross-

   examined before the Tribunal but the evidence

   leading to pay revision was not assailed.

13. Therefore, the consistent evidence before the

   Tribunal was that if the deceased would have

   been alive he would have reached the gross

   salary of Rs.20,000/- per month.

14. In view of this evidence the Tribunal should

   have considered the prospect of future income

   while computing compensation but the Tribunal

   8

   has not done that. In the appeal, which was

   filed by the appellants before the High Court,

   the High Court instead of maintaining the amount

   of compensation, granted by the Tribunal,

   reduced the same. In doing so, the High Court

   had not given any reason. The High Court

   introduced the concept of split multiplier and

   departed from the multiplier used by the

   Tribunal without disclosing any reason

   therefore. The High Court has also not

   considered the clear and corroborative evidence

   about the prospect of future increment of the

   deceased. When the age of the deceased is

   between 51 and 55 years the multiplier is 11,

   which is specified in the II Column in the II

   Schedule in the Motor Vehicles Act, and the

   Tribunal has not committed any error by

   accepting the said multiplier. This Court also

   fails to appreciate why the High Court chose to

   apply the multiplier of 6.

15. We are, thus, of the opinion that the judgment

   of the High Court deserves to be set aside for

   9

   it is perverse and clearly contrary to the

   evidence on record, for having not considered

   the future prospects of the deceased and also

   for adopting a split multiplier method.

16. The income of the deceased will be taken to be

   Rs.20,000/- p.m. which amounts to Rs.2,40,000/-

   p.a. After deduction of 1/3rd amount for personal

   expenses, the loss of notional income will be

   Rs.1,60,000/-. The multiplier of 11 will be

   applied, from which the loss of dependency will

   amount to Rs.17,60,000/-. We also award

   Rs.10,000/- for funeral and transport expenses,

   Rs.6,000/- for medical expenses prior to death

   and Rs.25,000/- for loss of love and affection.

   Thus, the total compensation awarded amounts to

   Rs.18,01,000/- which we round off to

   Rs.18,00,000/-.

17. The amount of compensation would thus be

   Rs.18,00,000/- with the rate of interest as

   granted by the Tribunal. The amount is to be

   deposited with the Tribunal within six weeks

   1

   from date after deducting any amount, if already

   deposited.

18. The appeals are, thus, allowed. No costs.

   .....................J.

   (G.S. SINGHVI)

   .....................J.

   (ASOK KUMAR GANGULY)

New Delhi

February 18, 2011

   1

man eater - surendra koli - sensational child killer and eater

ITEM NO.101 COURT NO.6 SECTION II

   S U P R E M E C O U R T O F I N D I A
   RECORD OF PROCEEDINGS
   CRIMINAL APPEAL NO(s). 2227 OF 2010

SURENDRA KOLI Appellant (s)

   VERSUS

STATE OF U.P. ORS. Respondent(s)

WITH SLP(Crl) NO. 608 of 2010
(With office report)

Date: 15/02/2011 This Appeal was called on for hearing today.

CORAM :
   HON'BLE MR. JUSTICE MARKANDEY KATJU
   HON'BLE MRS. JUSTICE GYAN SUDHA MISRA

For Appellant(s) Dr. Sushil Balwada, Adv. AC

   Mr. Vivek K. Tankha (A.S.G.)
   Mr. T. A. Khan, Adv.
   Mr. Pratul Shandilya, Adv.
   Mr. Sumeer Sodhi, Adv.
   Mr. Vaibhav Srivastava, Adv.
   Mr. Kumnanan D., Adv.
   Mr. Arvind Kumar Sharma, Adv.
   Mr. Harsh, Adv.

For the appellant Mr. B. P. Singh Dhakray, Adv.
In SLP (crl) Mr. Shakti Singh Dhakray, Adv.
608 of 2010 Mr. D. B. Vohra, Adv.


For Respondent(s) Mr. Ratnakar Dash, Sr. Adv.
   Mr. Shail Kumar Dwivedi, AAG
   Mr. Rajeev K. Dubey, Adv.
   Mr. Kamlendra Mishra ,Adv

For Resp No. 1 Mr. R. S. Sodhi, Sr. Adv.
In SLP (Crl) Ms. Manisha Bhandari, Adv
608 of 2010 Mr. Omkar Shrivastava, Adv. For

   Ms. Madhu Moolchandani

   -1-

   -2-

   UPON hearing counsel the Court made the following
   O R D E R

   The appeal is dismissed in terms of the
   signed order.

   SLP(Crl) NO. 608 of 2010

   Leave granted.

   (Deepak Joshi) (Indu Satija)
   Sr. P.A. Court Master

   (Signed reportable order is placed on the file )

   Reportable
   IN THE SUPREME COURT OF INDIA
   CRIMINAL APPELLATE JURISDICTION

   CRIMINAL APPEAL NO 2227 OF 2010

SURENDRA KOLI .........Appellant (s)

   Versus

STATE OF U.P. AND ORS. ........Respondent (s)

   WITH

   SPECIAL LEAVE PETITION (CRL.) 608 of 2010

   O R D E R

   Heard Dr. Sushil Balwada, learned counsel, who has

appeared for the appellant Surendra Koli in Criminal Appeal

No. 2227 of 2010.

   The appellant Surendra Koli, accused no. 2 and

Maninder Singh Pandher accused no. 1 were convicted under

Section 302/364/376 IPC by the Special Sessions trial no.

611 of 2007 decided on 13.02.2009 by Additional Sessions

Judge, Ghaziabad, U.P. By that judgment death sentence was

imposed on both these accused.

   In Appeal/Reference to the High Court accused

Surendra Koli's death sentence was affirmed while the

accused Maninder Singh Pandher was acquitted. Hence,

Surendra Koli has filed this Appeal before us.

   The facts of this case are gruesome and horrifying.

It seems that several children had gone missing over 2 years

from Sector 31, Nithari Village, Gautam Budh Nagar, Noida

from 2005 onwards. Several of such children were alleged to

   -1-

   -2-

have been killed by the appellant who is also alleged to

have chopped and eaten the body parts after cooking them.

Appellant Surendra Koli was the servant of accused no. 1

Moninder Singh, and they lived together at D-5, Sector 31,

Noida.

   The High Court in the impugned judgment dated

11.09.2009 has discussed the evidence in great detail and we

have carefully perused the same. It is not necessary

therefore to again repeat all the facts which have been set

out in the judgment of the High Court except where

necessary. We entirely agree with the findings, conclusion

and sentence of the High Court so far as accused Surendra

Koli is concerned.

   Admittedly, there was a confession made by Surendra

Koli before the Magistrate under Section 164 Cr.PC on

01.03.2007 and we are satisfied that it was a voluntary

confession. The Magistrate repeatedly told the accused

Surendra Koli that he was not bound to make the statement

and it can be read against him. In our opinion the

provisions of Section 164 CrPC have been fully complied with

while recording the said statement.

   In the aforesaid statement before the Magistrate

appellant Surendra Koli has admitted in great detail how he

used to kill the girls after luring them inside the House

no. D-5, Sector 31, Noida by strangulating them, and he

would then chop up and eat up their body parts after cooking

them. Some body parts, clothes and slippers were thrown in

   -3-

the enclosed gallery behind the house at D-5, Sector 31,

Noida. He volunteered to lead the police team to the

specific spot where he had kept the articles/body parts

hidden. The police party reached that spot along with the

appellant. On his pointing out, 15 skulls and bones were

recovered, and also a knife was recovered from a water tank

of a bath room in D-5, Sector 31. On 31.12.2006 during the

scooping of the drain in front of D-5, bones and chappals

were recovered.

   He has given graphic description about the several

murders he has committed. Surendra Koli was the servant of

co-accused Maninder Singh Pandher as has been admitted by

him. The confession under Section 164 has been corroborated

in material particulars. The body parts of the killed girls

have been found in the gallery behind the house and in the

Nala beside the house.

   Weapons like knife have also been recovered. The

girls clothes have also been identified.

   Two girls PW-27 namely Pratibha and PW-28 namely

Purnima have stated before the trial Court that they were

also attempted to be lured inside the House D-5 by Surendra

Koli but they refused to enter the house. This was their

sheer good luck, for if they would have entered the house

then they might have met the same fate. Their evidence

indicates the modus operandi of the appellant.

   The parents of one Rimpa Haldar had filed a missing

report at the police station on 20.07.2005 stating that

their daughter Rimpa aged about 15 years had gone to do

   -4-

menial work in Sector 20 on 08.02.2005 but had not returned.

Smt Doli Haldar came to know that in D-5, Sector 31 human

skeleton and clothes had been found. Hence she went there

and identified the chunni and bra of her daughter.

   The appellant was charged for the murder of Rimpa

(amongst others), and was found guilty by both the trial

Court and High Court. Although it is a case of

circumstantial evidence we are of the opinion that the

entire chain of circumstances connecting the accused

Surendra Koli with the crime has been established by the

prosecution beyond reasonable doubt.

   The DNA test of Rimpa by CDFD, a pioneer institute

in Hyderabad matched with that of blood of her parents and

brother. The Doctors at AIIMS have put the parts of the

deceased girls which have been recovered by the Doctors of

AIIMS together. These bodies have been recovered in the

presence of the Doctors of AIIMS at the pointing out by the

accused Surendra Koli. Thus, recovery is admissible under

Section 27 of the Evidence Act.

   On the facts of the case we see no reason to

interfere with the findings of the trial court and the High

Court that the appellant Surendra Koli is guilty of

murdering Rimpa Haldar. Both Courts have gone into the

evidence in great detail and we have perused the same. The

appellant appears to be a serial killer, and these cases in

our opinion fall within the category of rarest of the rare

cases as laid down in Bachan singh Vs State of Punjab, 1982

SCC 689 which has been subsequently followed in Atbir Vs

Government of NCT of Delhi, 2010 SCC (9) 1.

   -5-

   The killings by the appellant Surendra Koli are

horrifying and barbaric. He used a definite methodology in

committing these murders. He would see small girls passing

by the house, and taking advantage of their weakness lure

them inside the house no. D-5, Sector 31, Nithari Village,

Noida and there he would strangulate them and after killing

them he tried to have sex with the body and would then cut

off their body parts and eat them. Some parts of the body

were disposed off by throwing them in the passage gallery

and drain (nala) beside the house. House no. D-5, Sector 31

had become a virtual slaughter house, where innocent

children were regularly butchered.

   In our opinion, this case clearly falls within the

category of rarest of rare case and no mercy can be shown to

the appellant Surendra Koli.

   The appeal is, therefore, dismissed.

SPECIAL LEAVE PETITION (CRL.) 608 of 2010

   Leave granted.

   .....................J.
   [MARKANDEY KATJU]

   .....................J.
   [GYAN SUDHA MISRA]
NEW DELHI;
FEBRUARY 15, 2011

Thursday, February 17, 2011

UNFAIR TRADE PRACTICE - JOINT VENTURE BUILDING WAS DEMOLISHED- LIABLE TO REPAY

   Reportable
   IN THE SUPREME COURT OF INDIA

   CIVIL APPELLATE JURISDICTION

   CIVIL APPEAL NO.1493 OF 2011
   [Arising out of SLP [C] No.7283/2010]

Vinod Kumar Thareja ... Appellant

Vs.

M/s Alpha Construction & Ors. ... Respondents

   ORDER

R. V. Raveendran J.

   Leave granted.

2. The appellant, the owner of a plot measuring about 11000 sq.ft.

situated at Bhopal, entered into a Joint Venture Agreement dated 2.7.2004

with the first respondent for development of the said plot by construction

and sale of nine duplex flats. Under the said agreement, the appellant was to

provide his land to the first respondent for construction of flats; the first

respondent was responsible for the construction and sale of the duplex flats;

and out of the sale proceeds realized by sale of the flats, the appellant was
2

entitled to 45% and the first respondent was entitled to the balance of 55%.

The first respondent was authorized to enter into agreements of sale with

prospective purchasers of flats even at the stage of construction and receive

the price either in a lump sum or in instalments. The first respondent was

solely responsible for completion of construction and the quality of

construction. According to the appellant, his obligation under the joint

venture agreement was only to contribute the land and in consideration

thereof receive 45% of sale proceeds.

3. In pursuance of it, the appellant and first respondent entered into an

agreement dated 18.9.2004 with respondents 2 and 3, who were interested in

purchasing one of the nine duplex flats to be constructed in the property. The

said agreement clearly stated that the first respondent was to construct the

duplex flat and receive the consideration from respondents 2 and 3. In

pursuance of it, the first respondent's proprietor (Rajbir Singh), as Attorney

holder of the appellant, executed a sale deed dated 14.1.2005 in favour of

respondents 2 & 3, conveying an extent of 968 sq.ft., of land with a skeletal

structure thereon for Rs.6 lakhs.
3

4. Respondents 2 and 3 filed a complaint dated 22.6.2006 before the

District Consumer Redressal Forum, Bhopal (`District Forum' for short)

against the first respondent alleging deficiency in service. In the said

complaint they alleged that they had paid Rs.11,80,000/- to the first

respondent out of a total consideration of Rs.13,50,000/- for the purchase of

a duplex flat; that on 25.6.2005, the Municipal Corporation demolished the

structure constructed by the first respondent; and that the first respondent

committed an unfair trade practice by not disclosing the true facts and by not

delivering the constructed flat. The complainants also alleged that thereafter

the first respondent failed to construct the flat and was guilty of gross

negligence and deficiency in service. The complainants consequently

demanded from the first respondent, refund of the sum of Rs.11,80,000/-

paid by them with interest of Rs.3,35,000/-, compensation of Rs.2,00,000/-

and punitive damages of Rs.2,00,000/- in all Rs.19,15,000/-.

5. The said petition was contested by the first respondent who was the

sole respondent. The appellant was not impleaded as a party before the

District Forum, by the complainants. Even the first respondent did not make

any application before the District Forum for impleading the appellant as a
4

co-respondent. Nor did he contend that the appellant should be made liable

for payment of any amount that may be directed by the commission. He

merely contended that the complainants ought to have made the appellant

also a party and in his absence the complaint was liable to be dismissed.

6. The District Forum allowed the complaint by order dated 11.1.2007

and directed the first respondent to refund the sum of Rs.11,80,000/- paid by

the respondents 2 and 3 to the first respondent, with interest at 18% per

annum from the date of deposit till date of payment.

7. Feeling aggrieved, the first respondent filed an appeal before the

Madhya Pradesh Consumer Dispute Redressal Commission (`the State

Commission' for short) challenging the order of the district forum. In the

said appeal, the first respondent made an application for impleading the

appellant herein as the third respondent. That application was allowed on

28.4.2008 and the State Commission impleaded the appellant as third

respondent in the appeal and directed the appellant to file its response to the

complaint filed by the complainants under section 12 of the Act.
5

8. The appellant therefore filed a counter to the main complaint before

the State Commission pointing out that neither in the complaint by the

complainant nor in the appeal by the first respondent anything adverse has

been pleaded against them nor any claim made against him; and therefore,

the question of fastening any liability against him did not arise. The

appellant also filed objections to the appeal by contending that he was not a

necessary party to the appeal. He pointed out that the complainants had not

alleged or proved any wrong doing on his part or any deficiency in service

on his part, nor made any claim against him and therefore he could not be

impleaded as a party in the appeal.

9. The State Commission allowed the appeal of the first respondent in

part by a brief order dated 19.9.2008. It held that as the flats were

constructed by the first respondent in the land belonging to the appellant in

pursuance of a joint venture agreement between them and as the agreement

for sale in favour of respondents 2 and 3 had been executed jointly by the

appellant and first respondent and as the subsequent sale deed in favour of

respondents 2 and 3 was executed by the proprietor of first respondent as

attorney holder of the appellant, and as obtaining of building permission for

construction was the joint responsibility of the appellant and the first
6

respondent, the appellant herein was also responsible to compensate the

complainants for any loss suffered by them on account of the demolition by

the Municipal Corporation. As a consequence, the State Commission, while

upholding the direction of the District Forum for refund of Rs.11,80,000/-

paid by the complainants, made the following modifications :

(a) Respondents 2 and 3 shall re-convey the property in favour of
   appellant;

(b) The interest shall be reduced to 9% per annum; and

(c) The first respondent as also the appellant were liable for the amount
   payable to respondents 2 and 3.

10. Feeling aggrieved, the appellant filed a revision before the National

Consumer Dispute Redressal Commission (`National Commission' for

short) which dismissed the revision by the impugned order with the

following observations :

   "It is not in dispute that the owner of the property as well as the builder
   had entered into joint agreement to build the flats and though the
   responsibility of visiting the office of the corporation frequently to obtain
   sanctioning the plan/building licence. Commencement certificate and
   completion certificate etc., was delegated to the builder. The building
   permission is obtained in the name of owner and builder. Therefore, the
   builder and owner both are jointly responsible for all commission and
   omission. Even while collecting money from the consumers/complainants,
   an agreement was signed by the owner also. Further the Municipal
   Corporation had demolished the building because of dispute in the title of
   the property. Therefore, the liability of the petitioner, who claims to be the
   owner of the property of which title is unclear and still had entered into an
7

   agreement and sold the plot to the gullible consumers is proved and the
   deficiency is writ large."
   (Emphasis supplied)

The said order is challenged by the appellant in this appeal by special leave.

11. On the contentions urged, the following question arises for

consideration in this appeal : Whether a respondent against whom an order

for payment has been made in a complaint under the Consumer Protection

Act, 1986, can in an appeal filed by him, seek impleadment of a third party

by contending that such third party is also liable either partly or wholly, even

if the complainant has not sought any relief against such third party?

12. Respondents 2 and 3 filed the complaint against the first respondent as

they had made the payments to the first respondent and first respondent had

agreed to construct and deliver them the duplex flat and that the flat

constructed by the first respondent was demolished by the municipal

authorities. The complainants had no grievance against the appellant nor did

they seek any relief against the appellant. The first respondent herein who

was the sole respondent before the District Forum did not seek impleadment

of the appellant as a respondent in the complaint before the District Forum.

The District Forum allowed the complaint and held that the first respondent,
8

as the service provider, was guilty of deficiency of service and directed the

first respondent to pay to the complainants, a sum of Rs.11,80,000/- with

interest. That order was not challenged by the complainants (respondents 2

and 3). The only question that can, therefore, be considered in an appeal by

the first respondent was whether it was liable to pay any amount to

respondents 2 and 3 and, if so the extent thereof.

13. The scheme of the Act does not permit a service provider, who has

been made liable to refund the amount paid towards price under the order of

the District Forum, to file an appeal and pass on a part of the liability to

some third party, on the ground that the contract between them enabled him

to do so. In an appeal by a respondent in a complaint, aggrieved by the order

made in favour of the complainant, the only issue is whether the liability of

the respondent should be upheld, modified or rejected. The question whether

anyone else should be made liable along with the respondent in the

complaint, does not arise. The appeal by a respondent in a complaint has to

be dismissed, if the respondent is liable for the claim. If he has been wrongly

made liable, the appeal will be allowed. The issue in the appeal and the relief

that can be granted in the appeal can be only qua the complainant and not

qua some third party. If a service provider who has been made liable to a
9

complainant wants contribution from anyone else, on the ground that such

third party had also contributed to the deficiency in service, it is for the

service provider to take independent action against such third party, in

respect of the liability. As the complainants neither impleaded nor sought

any relief against the appellant, neither the State Commission nor the

National Commission could make the appellant liable along with the first

respondent.

14. The first respondent contended that when the appellant was impleaded

as the third respondent in its appeal, the appellant did not protest, nor

challenged the order of the State Commission impleading him as a party, but

filed objections to the complaint before the State Commission on merits and

participated in the appeal proceedings and therefore he was estopped from

challenging his impleadment. Being impleaded as a party in an appeal is

different from being made liable by an order in the appeal. A person may not

have any grievance if he is merely impleaded as a party, but may have a

grievance in regard to the impleading, if such impleading led to making him

liable for any payment. When a non-party is impleaded as a respondent in an

appeal, he can either challenge the impleadment itself or challenge his

impleadment, while challenging the final decision in the appeal. The fact

that the impleaded non-party filed objections to the complaint during the
10

pendency of the appeal, on the specific direction of the State Commission,

will not deny his right to challenge the impleadment.

15. This appeal is, therefore, allowed and the order of the National

Commission affirming the order of the State Commission making the

appellant liable jointly with first respondent is set aside. It is, however, made

clear that :

(i) if the first respondent has any claim or cause of action against the
appellant, it is at liberty to seek redressal of its grievances against the
appellant;

(ii) the order of the State Commission affirmed by the National
Commission to the extent it reduces the interest from 18% to 9% per annum
and requiring the respondents 2 and 3 herein to re-convey the flat to their
vendor under the sale deed dated 14.1.2005 is not disturbed; and

(iii) respondents 2 and 3 may draw any amount deposited by the first
respondent towards the amount due under the order of the District Forum as
modified by the State Commission.

   ............................J.
   (R.V. Raveendran)

New Delhi; ............................J.
February 08, 2011. (A.K. Patnaik)

MARUTI 800 CAR- INCREASE IN EXCISE DUTY PAYABLE BY WHOM ?

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(Civil) No(s).10364/2006

RAVINDER RAJ Petitioner(s)

VERSUS

M/S. COMPETENT MOTORS CO. PVT. LTD.&ANR. Respondent(s)

WITH SLP(C) NO. 9739-9740 of 2009

O R D E R

Two Special Leave Petitions, being SLP(C)

Nos. 10364 of 2006 and 9739-9740 of 2009, have

been filed against the judgment and order dated

19th July, 2005, passed by the National Consumer

Disputes Redressal Commission at New Delhi in

Revision Petition No.1485 of 2005 and the order

dated 7th August, 2008 passed by the said

Commission in Revision Petition No.2974 of 2005

filed by the respondent No.1, Maruti Udyog

Limited and also M.A.No.599 of 2006 in Revision

Petition 1533 of 2005 filed by the respondent

No.2, namely, Competent Motors Co.Pvt.Ltd., the

dealer.

2. The petitioner, Mr. Ravinder Raj, who is

appearing in person, applied to Maruti Udyog

Ltd.in 1985-1986 for booking a Maruti Car-800 and

deposited a sum of Rs.10,000/- as initial/advance

booking payment. On 15th July, 1988, the

respondent No.2 informed the petitioner by letter

of even date that his Maruti Car Allotment

No.0802-N-04051 had matured for delivery and

requested the petitioner to make payment of the

full amount of the price of the car for delivery

of the vehicle after completing the necessary

formalities. Pursuant to the above letter, the

petitioner on 16th February, 1989, paid a total

amount of Rs.78,351.05 which covered the price of

the vehicle, insurance charges and other minor

charges, including registration charges. There

is no denial that the petitioner had opted for a

cream colour vehicle.

3. On 1st March, 1989, there was an increase

in the excise duty payable, causing a price hike

of about Rs.6710.61. On 18th March, 1989, the

petitioner received a letter from the respondent

No.2 to deposit the excess amount payable as

excise duty, and, accordingly, the petitioner did

so under protest on 16th February, 1989.

4. The official billing in respect of the car

was done on 5th April, 1989.

5. The petitioner has contended that the

delay in delivery of the vehicle to him by the

respondents was not occasioned by any failure or

negligence on his part and the liability to pay

the increased amount on account of increase in

excise duty, was not that of the petitioner, but

of the respondents concerned. The petitioner,

therefore, applied to the District Consumer Forum

for a direction upon the respondents to bear the

increase in excise duty resulting in increase in

the price. Such a prayer was rejected by the

District Consumer Forum. The petitioner then

went to the State Forum which allowed the

petitioner's claim. Against the said order,

the respondents went before the National

Commission, which reversed the order passed by

the State Forum. It is against the said order

that the petitioner has come to this Court by way

of this Special Leave Petition.

6. As indicated hereinabove, the main ground

urged by the petitioner is that since he was not

responsible for the delay in the delivery of the

vehicle, he should not be made to bear the

increase in the price, particularly, when from

the documents, as indicated by him, the vehicle

of the colour chosen by him was available with

the respondents. He, therefore, submitted that

the order of the National Forum was erroneous and

was liable to be set aside.

7. Appearing for the dealer, M/s.Competent

Motors Co.Pvt.Ltd., Ms. Sapna Sinha, learned

advocate pointed out that even from the receipt

of the amount paid by the petitioner on 16th

February, 1989, it will be clear that the amount

paid was subject to the price prevailing on the

date of the invoice. According to learned

counsel, since the bill was dated 5th of April,

1989, it was the petitioner who was required to

bear the increase in price on account of the

increase in excise duty. Furthermore, she

reiterated that the colour which the petitioner

had wanted was not available at that point of

time, although, from the documents it would

appear that the same was available. According

to her, the said documents only indicated that

these were the colours in which the cars were

being manufactured and did not really indicate

the fact that such a colour was available on a

particular date.

8. According to her, there was no negligence

on the part of the dealer since having received

intimation about the readiness of the vehicle,

the respondent No.2 had immediately informed the

petitioner, but unfortunately, in the meantime,

the price had risen. According to the learned

counsel, the respondent No.2 could not,

therefore, be made liable for the increase in the

price.

9. Mr. Dayal, appearing for the the Maurti

Udyog Limited, while adopting the submissions

made by Ms. Sinha, also added that having regard

to Section 64 of the Sale of Goods Act, 1930,

the burden of any increase in the price by way of

additional taxes would have to be borne by the

customer and not by the manufacturer. He also

reiterated that since there was no negligence on

the part of the manufacturer in making the

vehicle available to the petitioner and since no

mala fide intention had been proved, the

petitioner would have to bear the increase in the

prices.

10. Having considered the submissions made, we

may refer to the letter of 15th July, 1988, which

had been written on behalf of the respondent No.2

to the petitioner indicating that the

petitioner's allotment No. had matured for

delivery. In the second paragraph of the letter,

the respondent No.2 requested the petitioner to

complete the modalities for effecting delivery of

the car against the allotment number. It was

categorically indicated that on receiving

payment, delivery would be effected in the

sequence of priority. Coupled with the above is

the proforma invoice dated 15th July, 1988, where

it was further indicated that the price

prevailing at the time of billing would be

applicable, despite the fact that the details of

the price of the vehicle were set out in the said

invoice.

11. As indicated hereinabove, even in the

receipt given to the petitioner for payment of

the amount in the proforma invoice, it had been

indicated that the prices prevailing on the date

of billing would apply.

12. In this case, the billing was done on 5th

of April, 2009. In the absence of any evidence

of any deliberate intention on the part of the

respondents to delay delivery of the vehicle, we

are unable to agree with the petitioner that the

increase in price has to be borne by the

respondents. The petitioner had relied on two

decisions of this Court in the case of Omprakash

Vs. Assistant Engineer, Haryana Agro Industries

Corpn. Ltd., 1994(3)SCC 504 and Mohinder Pratap

Dass Vs Modern Automobiles and Anr. 1995(3)SCC

581, on the same issue. The said two decisions

in our view are not applicable to the facts of

this case, on account of the fact that in the

said two matters patent deficiency in the service

had been found by the Court and it was also

pointed out that there was no satisfactory

explanation for the delay in delivery of the

goods to the consumers, which is not the case as

far as this particular matter is concerned.

13. Furthermore, having regard to the

provisions of Section 46A(1)(b) of the Sale of

Goods Act, 1930, it is the liability of the

petitioner to pay the extra price when the excise

duty had been enhanced prior to the delivery of

the vehicle.

14. In such circumstances, the Special Leave

Petition fails and is dismissed.

15. Consequently, in view of this order, the

other Special Leave Petition in which interest

on the amount claimed has been prayed for, does

not survive and is also dismissed.

16. There will, however, be no orders as to

costs in both the matters.

...................J.

(ALTAMAS KABIR)

...................J.

(CYRIAC JOSEPH)

New Delhi,

February 10, 2011.