Calcutta High Court (Appellete Side)
Great Eastern Appliances Pvt. Limited vs Santosh Kumar Kanodia @ S.K. Kanodia & ... on 8 July, 2011
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Joymalya Bagchi
C.O. NO. 158 OF 2011
Great Eastern Appliances Pvt. Limited
Vs.
Santosh Kumar Kanodia @ S.K. Kanodia & Anr.
For the petitioner : Mr. U.C. Jha, Advocate.
Md. Adnan Ahamed, Advocate.
Heard on : 30.06.2011
Judgement on : 08.07.2011
Joymalya Bagchi, J.:
This is an application under Article 227 of the Constitution of India, inter alia, challenging the order dated 6th May, 2010 passed by the learned State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as the "State Commission") in S.C. Case No. FA/462/2009 confirming the order No. 13 dated 29th October, 2009 passed by the learned Calcutta District Consumer Disputes Redressal Forum Unit I 2 (hereinafter referred to as the "District Commission") in C.D.F. Unit I case No. 115/2008.
The factual matrix giving rise to the instant litigation is as follows :
The respondent no. 1/complainant (hereinafter referred to as "the respondent") being attracted by an advertisement issued by the petitioner/opposite party no. 1 (hereinafter referred to as "the petitioner") and intending to purchase a Microwave Oven having grill, baking and toast facilities, on or about 23.12.2006, visited the office/showroom of the petitioner. The sales personnel of the petitioner persuaded the respondent and his family members to buy the Microwave Oven of Videocon having model no. VC3300. They assured the respondent that after sales service would be rendered by Videocon Industry Limited, the proforma respondent herein, through its local service centres and the same was promised to be of the highest standard. The respondent accordingly paid a consolidated price of Rs. 8,300/- and the petitioner issued an invoice being tax credit memo bearing no. AB0898 dated 23.12.1996. The Microwave Oven was delivered by the petitioner on 23.12.2006 and it worked satisfactorily upto March, 2007 but suddenly stopped functioning thereafter. Complaints were made to the petitioner by the respondent in this regard. Pursuant to such complaints, representatives of the petitioner visited the residence of the respondent and it was reported by their service engineers that the 3 printed circuit bearing (PCB for short) had become dead and that the same required replacement.
However, no steps were taken by the petitioner to repair the said Microwave Oven or replace the same.
Finally, in October, 2007, the engineers of the petitioner confirmed that the Microwave Oven was a defective one and the same required a complete replacement.
Thereafter, on 23rd October, 2007, under a challan dated 16th October, 2007 the petitioner replaced the said Microwave Oven with a new one. Inspite of such replacement, again on and from 24th February, 2008, the new Microwave Oven stopped functioning. This fact was reported by the respondent to the petitioner, but no steps were taken to rectify the fault in the defective machine. Only on one occasion, an engineer of the petitioner examined the replaced Microwave Oven and confirmed that the said Microwave Oven has become defective and he assured the respondent that he would put in a requisition for supplying a new Microwave Oven. Thereafter, time and again the respondent approached the petitioner and was assured by the petitioner that they would look into the matter, but no steps were taken. Finally, on 7th March, 2008 one Miss Namita, an employee of the petitioner assured the respondent that on or before 10th March, 2008 the said Microwave Oven would either be repaired or be 4 replaced with a new one. Inspite of such representation no steps were taken to replace the defective Microwave Oven.
The respondent being a consumer of the aforesaid product having purchased the same from the petitioner, on or about 17.04.2008 filed a petition under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act of 1986") against the petitioner and the proforma respondent herein, inter alia, praying for the following reliefs :
a) The petitioner and the proforma respondent herein be directed to refund to the respondent herein the said sum of Rs. 8,300/- (Rupees Eight Thousand & Three Hundred) only together with interest thereon at the rate of 24% per annum from the 23rd December, 2006 till the date of effecting refund;
b) The petitioner and the proforma respondent herein be directed to pay jointly or severally to the respondent herein the sum of Rs. 1,00,000/-
(Rupees One Lakh) only on account of damages and mental agony suffered by the complainant;
c) Interest be directed to be paid at the rate of 18% per annum on the sum awarded by this Learned Forum against the petitioner and the proforma respondent herein from the date of filing of this petition till its realization;
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d) An order of injunction be passed restraining the petitioner and the proforma respondent herein as also all other whole sellers, retailers and dealers of the proforma respondent from selling the Videocon Microwave Oven Model No. VC3300 to any one;
e) A mandatory order be passed directing the proforma respondent herein to condemn and turn in to scrap the entire stock of the Videocon Microwave Oven Model No. VC3300 so that no other consumer may be put to sufferance any further at the hands of the proforma respondent;
f) Ad interim orders in terms of the prayers made hereinabove;
g) Costs of and incidental to this petition be directed to be paid to the respondent by the petitioner and the proforma respondent herein jointly or severally;
h) The respondent be granted liberty to return the said Microwave Oven to petitioner and the proforma respondent herein against refund of the said amount as also payment of the damages and compensation;
i) Such further or other order or orders be passed and/or direction or directions be given as to this Learned Forum may deem fit and proper. The petitioner and the proforma respondent herein, on or about 22.08.2008, jointly filed a written statement wherein it was admitted that the petitioner purchased a Microwave Oven upon payment of sum of Rs. 8,300/-. It was also admitted that on or about October, 2007 the 6 Microwave Oven had to be replaced because the earlier one suffered from defects. Apart from the aforesaid, the petitioner made bald denials of the other allegations in the complaint.
In course of proceeding, the parties adduced evidence on affidavits. After considering the pleadings and evidence on affidavits of the parties and after hearing the parties, the learned District Forum by order No. in S.C. Case No. FA/462/2009 directed the petitioner to refund of Rs. 8,300/- only to the respondent within 30 days from the date of communication of the said order, failing which it will carry interest @ 12% per annum till full realization. Further the petitioner and the proforma respondent were jointly and severally directed to pay compensation of Rs. 20,000/- only to the respondent along with litigation costs of Rs. 3,000/- only positively within 30 days from the date of communication of the said order to the office, failing which the same would carry interest @ 10% per annum till realization.
Being aggrieved by and dissatisfied with the aforesaid judgement and order dated 29.10.2009 passed by the District Forum the petitioner filed an appeal under Section 19 of the Act of 1986 before the State Commission being in S.C. Case No. FA/462/2009. Upon hearing the parties, the learned State Commission affirmed the impugned judgement and order dated 29.10.2009 passed by the learned District Forum and dismissed the 7 same on contest with costs of Rs. 1,000/- to be paid by the petitioner to the respondent. The State Commission further directed the opposite parties to pay the decreetal dues along with costs imposed to the respondent within one month from the receipt of the said judgement, failing which the same would accrue interest @ 10% per annum for the period default.
This order has been assailed by the petitioner before this Court by invoking Article 227 of the Constitution of India. Praying for admission of the said application, the learned Counsel for the petitioner has argued as follows :
a) That both the District Forum and the State Commission have erred in law in coming to a finding that the Microwave Oven suffered from inherent defects without obtaining an expert opinion as provided under Section 13 (1)(c) of the Act of 1986.
b) That in view of the terms printed in the cash memo annexed by the respondent to his complaint it is evident that under no circumstances the petitioner could be liable for any defect in the product in any manner whatsoever.
c) In the body of the complaint, there is no pleading in respect of warranty on the said product and hence, the respondent cannot claim replacement of the same.8
In support of his contention, the learned Counsel has cited the following decisions :
1) I (2006) CPJ 3 (SC) Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr.
2) AIR 1984 Supreme Court 1401 State of Uttar Pradesh Vs. District Judge, Unnao and others.
3) AIR 2003 Supreme Court 1043 State of Karnataka Vs. Vishwabarathi House Building Co-operative Society and others.
4) AIR 1997 Madras 204 The Managing Director, Nadippisai Pulavar K.R. Ramswamy Sugar Mills Vs. A. Fareed Bawa and others.
5) AIR 1997 Supreme Court 1125 L. Chandra Kumar Vs. Union of India and others.
6) I (2007) CPJ 312 (NC) Lovely Autos Vs. Harmesh Lal & Another.
The first contention raised by the learned Advocate for the petitioner that the product ought to have been sent for expert opinion under Section 13 (1) (c) of the Act of 1986 has neither been argued nor pleaded by the petitioner before the subordinate tribunals. There is no pleading in the written statement of the petitioner that the defect in the product is such that it cannot be determined without proper analysis or test as provided under Section 13(1)(c) of the Act of 1986. In the absence of any such pleading, an entirely new case cannot be permitted to be made out by the 9 petitioner at this belated stage. Hence the said plea is rejected as an afterthought.
The second contention raised on behalf of the petitioner that the terms in the cash memo excluded the petitioner from any liability whatsoever in respect of any defect in the goods is wholly without substance and contrary to law. It is a settled proposition of law that there no party can contract out of a statutory liability. Any term contained in the contract of sale in violation of a statutory provision is void. Hence, this contention of the petitioner that the printed terms in the cash memo exempted it from the liability arising under the provisions of the Act of 1986 is wholly misconceived and liable to be rejected.
Lastly, it has been contended that there is no pleading relating to warranty in the complaint so as to entitle the respondent to a replacement of the goods. It appears from the admitted facts of the case that within a very short span of time the original product was found defective and was replaced. Even the replaced product became non functional with a few months. Both the tribunals have come to a concurrent finding that the product was defective and required replacement. In view of such concurrent finding of the tribunals, I find no merit in this submission of the learned Lawyer.
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Moreover, none of the aforesaid submissions raised by the learned Lawyer for the petitioner relate to an error apparent on the face of record or point out any manifest injustice necessitating interference under Article 227 of the Constitution of India.
Analysising the scope and ambit of Article 227 of the Constitution of India, the Supreme Court in the case of Jai Singh and others Vs. Municipal Corporation of Delhi and another, reported in 2010 (9) SCC 385 at paragraphs 15 and 16, held as follows :
"We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well-recognised principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, 11 however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well- recognised constraints. It can not be exercised like a "bull in a china shop", to correct all errors of judgement of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.
The High Court cannot lightly or liberally act as an appellate court and reappreciate the evidence. Generally, it can not substitute its own conclusions for the conclusions reached by the courts below or the statutory/quashi-judicial tribunals. The power to reappreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice."
It is therefore clear that only when there is a grave dereliction of duty and or flagrant abuse of fundamental principles of law or justice manifested through an error apparent on the face of record the power under Article 227 of the Constitution may be invoked. It ought not to be 12 invoked, as in the instant case, when a challenge is thrown to a concurrent finding of fact.
In this regard reference may be made to the decision of the Apex Court in the case of Fatmabibi Usmal Patel and Others Vs. Manguben Pranbhai Thakkar and Others reported in 1995 (Supp) 3 SCC 193. In paragraph 9 of the said decision the Apex Court held as follows :
"....................... This is a case of High Court exercising jurisdiction under Article 227 which only conferred a power of superintendence. If that be so, unless there was an error of law apparent on the case, there was no justification to interfere with the concurrent findings of the fact......."
It is apposite to mention that the petitioner has preferred the instant application under Article 227 of the Constitution of India without availing of the statutory remedy of revision as provided under Section 21(b) of the Act of 1986. Section 21(b) of the Act of 1986 reads as follows :
21. Jurisdiction of the National Commission. --Subject to the other provisions of this Act, the National Commission shall have jurisdiction--
(a) ...........................
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has 13 failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
I am of the view that the failure to avail of the said statutory remedy of revision is another relevant consideration not to invoke the discretionary supervisory jurisdiction under Article 227 of the Constitution of India in the facts of the instant case.
Now let me analysis the judgements cited by the learned Lawyer for the petitioner.
The decision reported in I (2006) CPJ 3 (SC) (Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and another) is factually distinguishable in as much as in the instant case there is a concurrent finding of fact that the product was wholly defective and required to be replaced.
The case reported in I (2007) CPJ 312 (NC) (Lovely Autos Vs. Harmesh Lal & Anr) related to minor defects in the product which had been repaired and did not relate to a inherent defect which rendered the same wholly unusable. Further the said decision being delivered by the National Commission has no precedential value.
The decision reported in AIR 1997 Madras 204 (The Managing Director, Nadippisai Pulavar K.R. Ramswamy Sugar Mills Vs. A. Fareed Bawa and others) has been delivered without considering Section 21(b) of 14 the Act of 1986. Hence, I am not inclined to follow the ratio laid down in the said case.
The decision reported in AIR 1984 Supreme Court 1401(State of Uttar Pradesh Vs. District Judge, Unnao and others) relates to a case where manifest illegality was apparent in the face of records in as much as the courts below had rejected a prayer for condonation of delay on the specious plea that each day's delay has not been explained.
The decision reported in AIR 1997 Supreme Court 1125 (L. Chandra Kumar Vs. Union of India and others) lays down the ratio that tribunals under Article 323A and 323B of the Constitution of India are amenable to judicial review by the High Court under Article 226 /227 of the Constitution of India. This ratio of this case is of no relevance to the matter in issue.
The decision reported in AIR 2003 Supreme Court 1043 (State of Karnataka Vs. Vishwabarathi House Building Co-operative Society and others) upholds the vires of the Act of 1986 and has no manner of application to the facts and circumstances of the instant case.
It is, therefore, clear that the decisions cited by the learned Lawyer of the petitioner are not applicable to the facts of the instant case.
In view of the aforesaid discussion, I am constrained to hold that the petitioner has failed to make out a case for invoking the supervisory 15 jurisdiction under Article 227 of the Constitution of India. The application is, therefore, not admitted and dismissed.
Urgent certified photostat copy of this order be given to the parties, if applied for, subject to compliance with all necessary formalities.
(Joymalya Bagchi, J.)