National Consumer Disputes Redressal
M/S. Daya Anil Motors vs Mukesh Kumar And Another on 21 September, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1243 OF 2012 (Against the Order dated 25/01/2012 in Appeal No. 90/2012 of the State Commission Haryana) 1. M/S. DAYA ANIL MOTORS Through its Proprietor Akhil Kalia Office at, 16/6 Mathura Road, Jha Residence, Old Faridabad Haryana ...........Petitioner(s) Versus 1. MUKESH KUMAR AND ANOTHER S/o Late Shri Jhagru Mal, R/o E-396 Dabua Colony NIT Faridabad Haryana 2. ICICI Bank Ltd., Sector-15 Faridabad Haryana ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER
For the Petitioner : Mr D P Singh, Advocate
Mr Devansh Arya, Advocate
Mr Taranjit Singh, Advocate For the Respondent : Mr Amit Bhardwaj, Advocate for R 1
Ms Chetna Bhalla, Advocate for R 2
Dated : 21 Sep 2022 ORDER
PER MR SUBHASH CHANDRA, PRESIDING MEMBER
This revision petition has been filed under section 21 of the Consumer Protection Act, 1986 (in short, the 'Act') against the order dated 25.01.2012 of the State Consumer Disputes Redressal Commission, Haryana (in short, 'the State Commission') in First Appeal no. 90 of 2012.
2. In brief, the facts of the case are that respondent no.1/complainant had purchased a three wheeler scooter (Vikram 410 G make) bearing registration number DL-1 LH-2898 from the petitioner in November 2006 for a price of Rs 1,45,108/- excluding insurance charges. The complainant paid Rs.35,000/- and Rs 95,150/- was financed by respondent no. 2. The balance of Rs 14,958/- was to be paid by the respondent no. 1 by 02.01.2007. On 02.01.2007 the respondent no.1 issued a cheque of Rs 11,658/- towards the balance amount and left the three wheeler in the premises of the petitioner. He then filed a consumer complaint (No. 78 of 2007) in the District Forum, Faridabad alleging that the three wheeler purchased by him had developed serious manufacturing defect and had become unfit for plying on 05.11.2006 and thereafter again on 20.11.2006. It was alleged that the respondent refused to replace the said vehicle even though it was within the guarantee period. The petitioner in his reply contended that the respondent no.1 had not paid the full price of the vehicle as the cheque of Rs 11,658/- was dishonoured and there was no manufacturing defect as no complaint had been made by the respondent on this account. It was submitted that the vehicle had been abandoned at the premises of the petitioner by the respondent no. 1 as he was an employee of the IDBI Bank and because the contract with the company for engaging the three wheeler had been terminated. The vehicle had been taken possession of by the respondent no.2 as the financier and it was he who delivered the vehicle to a third party who paid the balance loan installments. It was also contended that as the vehicle was used for commercial purposes, the Act was not applicable.
3. In consumer complaint no.78 of 2007 filed by respondent no.1, the District Forum, Faridabad passed the following order on 19.10.2011:
"6. There is no dispute that the complainant purchased a three wheeler from respondent no.1 somewhere in November 2006 which developed a defect and became unfit for running on 05.11.2006. It was taken to respondent no.1 who effected the repairs and handed over the three wheeler to complainant. But again on 20.11.2006 the three wheeler became unfit for running. The complainant left it with respondent no.1 and since then it has been lying in the custody of the said respondent. The three wheeler was within the guarantee period when it became unfit for running on the road.
7. So it is clear from the unrebutted evidence of the complainant that the three wheeler purchased by him from respondent no.1 had serious manufacturing defect on account of which it became unworthy of running on the road shortly after its purchase by the complainant. Since 20.11.2006 the three wheeler has been lying in the custody of respondent no.1. The respondent is therefore, liable to replace the said three wheeler with a new one of the same make without asking for any more price from the complainant.
8. Resultantly, respondent no.1 is directed to replace three wheeler of complainant bearing no. DL 1 LH 2898 with a brand new three wheeler of the same make without asking for any more amount towards the price of the three wheeler and respondent no.1 is further directed to pay an amount of Rs.10,000/- to the complainant towards litigation expenses and mental harassment."
4. The petitioner approached the State Commission in First Appeal no. 90 of 2012. Vide its order dated 25.01.2012, the State Commission dismissed the appeal and affirmed the impugned judgment of the District Forum as below:
"Under the circumstances, the reasons given in the application were taken as inadequate and insufficient to condone the delay. The ratio of the above mentioned case fully applies to the facts and circumstances of the present case. Therefore, the ground stated in the application cannot constitute sufficient cause so as to condone the delay in filing the appeal as prayed for in the application from the side of the appellants. Therefore, the application for condonation of delay in filing the appeal is rejected.
Even on merit, there is no force in this appeal. While disposing of the complaint, the District Forum has taken into consideration the fact that opposite party no.1 had sold a defective three wheeler bearing registration no. DL 1 LH 2898 to the complainant, which was got financed by him from the opposite party no.2. The said three wheeler was dropped by the complainant at the workshop of the opposite party no.1 on 20.11.2006. Instead of handing over the vehicle to the complainant after due repair, the opposite parties have sold the same to another person. Except the written statement, the opposite party had not lead any contrary evidence to the version of the complainant. It was under these circumstances, the District Forum has accepted the complaint and has granted the relief to the complainant as noticed above.
On our asking learned counsel for the appellant has filed to show us any document with respect to the surrender of his three wheeler as well as termination of any contract of the three wheeler of the complainant by any private company. In this view of the matter, we feel that there was admittedly, deficiency in service on the part of the opposite party no.1 and it was under these circumstances, the District Forum has accepted the complaint vide its impugned order, which does not call for any interference in this appeal.
As a sequel to our above discussion, this appeal is dismissed on both the counts, i.e., limitation as well as merits in limine.
5. Heard the learned counsels for both the parties and perused the records carefully. The petitioner argued that there has been no evidence brought on record by the respondent no.1 that the three wheeler was rendered unfit for plying on account of any manufacturing defect. It was averred that respondent no.1 has been a defaulter in not paying the full amount to respondent no. 2 and even the cheque for Rs 11,658/- had been dishonoured. The sale of the vehicle to a third party by Respondent no.2 was, therefore, done to recover the cost of the vehicle.
6. The petitioner has contended during arguments that the order of the State Commission dismissing the appeal on the question of limitation is a material irregularity as it is with a view to decline the condonation of delay and not to do substantial justice as held by the Hon'ble Supreme Court in Manager, IndusInd Bank Ltd & Anr Vs. Sanjay Ghosh CA No. 4104 of 2022 dated 17.5.22. It was also submitted, relying on this Commission's order in Dariya Vs. United India Insurance Company Ltd. in RP No. 1286 of 2012 (2021) SCC) OnLine NCDRC 785 that "if the State Commission was dismissing the application for the condonation of delay, not finding sufficient cause for condoning the delay, the appeal could have been dismissed on limitation alone and there was no necessity for the State Commission to enter into the merits of the case as well." In the instant case it is apparent from the impugned order that the State Commission dismissed the appeal both on limitation and merits.
7. The petitioner relied upon judgment of the Hon'ble Supreme Court in Magma Fincorp Ltd. Vs. Rajesh Kumar Tiwari in CA No. 5622 of 2019 (2020) 10 SCC 399 dated 01.10.2020 wherein it has been held that punitive damages should be granted only in exceptional circumstances where the action of the financier is so reprehensible that punishment is warranted. It is argued that this was not the case. The vehicle was not forcibly seized or taken possession of. Rather, it was left with the petitioner on his own by the respondent no.1. Therefore, it is submitted punitive damages awarded are unjustified.
8. Respondent no. 1 has in his written synopsis alleged that the three wheeler suffered from a major manufacturing defect. He has also stated this on affidavit. Vide his affidavit in evidence he has admitted to having stopped paying the monthly installments towards the repayment of the loan for the purchase to Respondent no.2. However, no documentary evidence or report from an authorized dealer or workshop to this affect is brought on record.
9. Respondent no. 2 has contended in his written arguments that the State Commission has not fastened any liability on it. He submits that he financed the three wheeler for respondent no. 1 to the extent of Rs.1,03,000/- and that he sold the same to a third party on 0.3.12.2007 for a sum of Rs.45,000/- when the vehicle was left with the petitioner by respondent no. 1 and that this third party was now repaying the loan instalments.
10. While this Commission has revisional jurisdiction, it is not required to re-assess and re-appreciate the evidence on record and substitute its own conclusion on facts especially when findings on facts of the lower fora are concurrent. Concurrent findings of the foras below can be interfered with if the findings are perverse or the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when it is based on other evidence that have not been produced or based on conjecture or surmises i.e. evidence which is either not part of the record or when material evidence on record is not considered. As held by the Hon'ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Co. Ltd., - (2011) 11 SCC 269, "the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside." The Hon'ble Supreme Court has reiterated this principle in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors - (2016) 8 SCC 286 that "The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity." 11. The power of this Commission to review under section 26 (b) of the Consumer Protection Act, 1986 is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon'ble Supreme Court. However, exercise of revisional jurisdiction is valide in case of lower fora exceeding their jurisdiction or with material irregularity.
12. Section 14 of the Act empowers the District Forum to award compensatory damages under Section 14 taking into account relevant factors. It is empowered to remove deficiencies in the service as per Section 14(1)(a), pay punitive damages for any loss or injury suffered [section 14(1)(d)] or discontinue any unfair trade practice [section 14(1)(f)]. Section 13(2)(b) requires the District Forum to decide a complaint on the basis of evidence before it. No adverse inference can be drawn when there was no allegation in the complaint. The onus of proof is with the complainant.
13. The District Forum has ordered replacement of the three wheeler at no extra cost along with costs of Rs 10,000/- on the ground that it had a major manufacturing defect. This conclusion is based on the assertion of respondent no. 1, that the three wheeler had major manufacturing defects. From the records it is apparent that other than this assertion on the basis of the vehicle's on road performance on 05.11.2006 and 20.11.2006, there are no documents filed to substantiate the claim of the manufacturing defect. The onus of proof for this was on the respondent no.1. The District Forum in pursuance of its mandate under Section 13 was required to have the necessary evidence produced before it prior to drawing an adverse inference. The order of the District Forum is silent regarding the evidence of the major manufacturing defect considered. An order to replace a vehicle with costs certainly amounts to punitive damages. As observed in Magma Fincorp Limited vs Rajesh Kumar Tiwari (2020) 10 SCC 399 by the Hon'ble Supreme Court:
"62. The proviso to Section 14 (1) (d) of the Consumer Protection Act, 1986 empowers the District Forum to grant punitive damages in such circumstances as it deems fit. Punitive damages are not generally awarded in cases of breach of contract unless the act is so reprehensible that it calls for punishment of the party in breach, by imposition of punitive and/ or exemplary damages. Compensation which is compensatory, has to be assessed taking into account relevant factors, such as the loss incurred by the claimant, though some amount of guesswork and/ or estimation may be permissible. In the instant case, the District Forum did not even undertake the exercise of assessment of the loss/ damages, if any, suffered by the complainant by reasons of non-service of notice before taking possession of the vehicle."
14. The fact that respondent no. 1 was a defaulter in repayment to respondent no.2 as per his affidavit and as admitted by the respondent no.1 himself in his written arguments, the action of sale of the vehicle to a third party cannot be faulted, especially since the vehicle had been abandoned by the respondent no. 1 with the petitioner with a cheque towards repayment of loan that bounced.
15. In view of the foregoing, it is manifest that the District Forum erred in not requiring the respondent to produce the evidence of the major manufacturing defect, considering that he has cited only two instances of the vehicle's malfunction over a period of one month that the vehicle was in his possession, i.e. from November 2006 to 27th December 2006. This constitutes a material irregularity in terms of Lourdes Society Snehanjali Girls Hostel (supra) and therefore justifies the invocation of the revisional jurisdiction of this Commission under section 26 (6) of the Act. It is evident from the impugned order that the State Commission having dismissed the appeal for limitation and yet having considered it cursorily on merits also failed to appreciate the above and re-examine the appeal.
16. In view of the above, I am inclined to accept the contentions of the petitioner. The revision petition is allowed and the order of the State Commission upholding the order of the District Forum is set aside. Consequentially, the order of the District Forum is also set aside. No costs.
...................... SUBHASH CHANDRA PRESIDING MEMBER