WHITELINE APPLIANCES Vs. SUDHA PRASAD

JUDGEMENT

(1.) Briefly, the facts are that K. Kant, complainant now respondent No.1 purchased a Moped from Himgiri Auto Mobile Pvt. Ltd. defendant No.3 on 4th January, 1989 for a consideration of Rs.7,805/-. It is alleged by him that since the date he purchased the Moped it did not work satisfactorily. Defendant No.1 and 2 M/s Hero Honda Motors Pvt. Ltd. and M/s Hero Motors Ltd. were stated by him to be the manufacturers of the Moped. He pleaded that defendant No.3 gave an assurance on behalf of defendant Nos.1 and 2 that in case any defect arose, the same would be rectified, but inspite of his approaching the defendants many times, the defects could not be rectified. He has, therefore, prayed that the defendants be directed to either replace the Moped or refund the amount of Rs.7,805/- paid by him to defendant No.3 as its price.

(2.) Notices were issued to the defendants but no one appeared on their behalf before the District Forum. Consequently, the Forum vide impugned order dated 11.9.90 directed the defendants to replace the Moped within one month of the date of order, and in case it was not replaced, it was directed that they should pay Rs.7,805/- Rs.1,173/- to the complainant within that period, failing which the defendants would be liable to pay interest @ 12% per annum from 4th January, 1989 till the date of payment.

(3.) In application dated 28th September, 90 was moved on behalf of M/s Majestic Auto Ltd. before the District Forum stating that defendant Nos.2 and 3 had been duly served for 11th September, 90 and they had engaged Sh. Mahesh K. Chaudhary, Advocate for appearing before the Hon'ble Forum. Defendant No.2 M/s Hero Motors was a division of M/s Majestic Auto Ltd. and defendant No.2 was not the manufacturer of the Moped. It was alleged that on 11th September, 90, the Counsel was busy in the High Court of Delhi at New Delhi and he could not appear before the Forum when the case was called for hearing. However, he had deputed a Clerk to make a request to the Forum to wait for the Counsel, inspite of that the Forum proceeded ex-parte. Consequently, it was prayed that the ex-parte order dated 11th September, 90 be set aside and the said defendants be allowed to file written reply. The counsel also filed an affidavit in that regard. The Court rejected the application and conveyed the order vide letter dated October 17 and 23,1990 to M/s Majestic Auto Ltd. that the application had been rejected. It was stated in the letter that there was no provision in the Act for setting aside the ex-parte orders. M/s Majestic Auto Ltd. and M/s Himgiri Auto Mobiles Ltd. have come up in appeal against both the orders to this Commission.