National Consumer Disputes Redressal
M/S. Telco Ltd. vs Brijmohini Chauhan & Anr. on 7 October, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 109-110 OF 2011 (Against the Order dated 01/10/2010 in Appeal No. 988-975/2005 of the State Commission Rajasthan) 1. M/S. TELCO LTD. Through its Chairman, 26th Floor, Center No. 1, World Trade Center, Kufe Parade Mumbai - 400005 Maharashtra 2. M/S. TATA ENGINEERING & LOCOMOTIVE CO. LTD. 26th Floor, Center No. 1, World Trade Center, Kufe Parade Mumbai - 400005 Maharashtra 3. M/S. TATA ENGINEERING Through Manager, Second Floor, Shriji Tower, C-99, Subhash Marg, C-Scheme Jaipur Rajasthan ...........Petitioner(s) Versus 1. BRIJMOHINI CHAUHAN & ANR. R/o. A-95, Murlipura Shceme Jaipur Rajasthan 2. M/S. ROSHAN MOTORS PVT. LTD. Through Managing Director, In Front of Ganpati Enclave, Ajmer Road Jaipur Rajasthan ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER
For the Petitioner : Mr Aditya Narain, Advocate with
Mr Abhishek S, Mr Ritu Raj and
Mr Aditya Singh, Advocates For the Respondent : For Respondent no.1 NONE
For Respondent no.2 Mr Rajiv Dugal, Advocate
Dated : 07 Oct 2022 ORDER
PER MR SUBHASH CHANDRA, PRESIDING MEMBER
1. This revision petition filed under section 21(b) of the Consumer Protection Act, 1986 (in short, the 'Act') assails the order of the Rajasthan State Consumer Dispute Redressal Commission, Jaipur (in short, 'State Commission') in First Appeals No. 988 of 2005 and 975 of 2005 dated 01.10.2010 dismissing the appeal against the order of the District Consumer Disputes Redressal Forum, Jaipur Second, Jaipur (in short, 'District Forum') in Consumer Complaint No. 310 of 2004 dated 25.05.2005.
2. The brief facts of the case as per the revision petitioner are that the respondent had purchased a TATA Indigo LSE II car manufactured by the petitioner on 26.02.2003 for Rs.5,28,540/-. After running for 39,630 kms, the car stopped on 30.03.2004 as the cylinder head of the engine seized due to overheating. At the workshop the assessment was that the respondent had used water instead of coolant and that the thermostat valve had been removed which was the cause of the engine's seizure. The respondent was informed that since the vehicle's breakdown was due to maintenance issues and not manufacturing defects, it was beyond the terms of warranty (clause 5) and the cost of repairs would have to be borne by her. The vehicle was abandoned at the workshop by the respondent on 31.03.2004 without authorization of repairs and has remained there since then for which she is liable to pay Rs 250/- per day. As the defect was due to improper maintenance and not any manufacturing defect, the petitioner has contended that the order of the District Forum in CC no. 310 of 2004 directing the petitioner to repair the car free of cost within 2 months and pay Rs 10,000/- as compensation for mental agony and Rs 2,000/- as litigation costs to the respondent was not justified. The impugned order of the State Commission in appeal filed by the respondent sets aside the order of the District Forum and directs the petitioner to replace the car with compensation, litigation cost and damages for having deprived the respondent from using the vehicle.
3. The petitioner contends that the impugned order is erroneous and illegal as it provides a relief far beyond that prayed for by the respondent. The order has not distinguished that there were no warranty issues as the vehicle was incorrectly maintained which led to the defect arising and resultantly the vehicle stopped on the road. Petitioner cites various job cards pertaining to the car dated 30.03.2004 and 31.03.2004 and a Customer Complaint Investigation Report when it went for servicing/repairs in support. It is contended that the State Commission wrongly relied upon the affidavit of one Sandeep Khanna, Surveyor and Loss Assessor who examined the car at the workshop of petitioner no.2 on 22.10.2004 without authorization, regarding which a police complaint was also filed, which document has been disregarded by the State Commission. The petitioner no. 1 contends that there is no privity of contract between the respondent and him since he sells cars to dealers. He has relied upon the judgment of this Commission in Maruti Udyog Limited Vs Nagendra Prasad Sinha and Anr., decided on 04.05.2009 - 2009 (II) CPJ 295 NC which held that as the relationship between the manufacturer and the dealer is on the basis of principal to principal, the manufacturer would not be liable for the acts of the dealer. He also relied upon the judgment of the Hon'ble Apex Court in the case of Indian Oil Corporation vs Consumer Protection Council, Kerala and Anr., II (1994) CPJ 21 (SC) which held that once delivery of the vehicle is given to the dealer after realizing the price from the dealer, the relationship between the manufacturer and the dealer was not of principal and agent, but of vendor and purchaser. In Maruti Udyog Limited (Supra) the State Commission had held that the company was liable to either deliver the vehicle or refund the deposited amount or to pay compensation to the complainant. He contends that the fora below failed to consider the terms of the warranty given by the petitioner in respect of the vehicle, which are final in terms of the decision of the Hon'ble Supreme Court in Bharathi Knitting Company Vs. DHL Worldwide Express Courier - (1996) 4 SCC 704 dated 09.05.1996 wherein it was held that an agreement between parties was binding and could not be described as being one-sided. Clause 5 of the Warranty specifically provides that it will expire in the eventuality of misuse or negligence by the customer. The seizure of the engine was due to use of water instead of coolant and the thermostat valve being missing which is attributable to negligence and misuse by the respondent. It is also contended that the grievance can at best be limited to the engine and not the vehicle as a whole. The petitioner contends that the fora below failed to follow the prescribed procedure under Section 13(1)(b) of the Act and arrived at a finding without referring the vehicle for testing and a report from the 'appropriate laboratory' to ascertain whether it suffered from a manufacturing defect. It is also averred that the vehicle had run nearly 40,000 kms which was a relevant factor to be considered as per the decision of the Hon'ble Supreme Court in Telco Motors Vs. Gajanan Mandrekar (1995) 7 SCC 507 that since the vehicle was extensively used, there is need to deduct proportionately from the compensation awarded. He has also relied upon TATA Motors vs Ashok Saraf - FA no. 524 of 2005 where this Commission has taken a view that abandonment of vehicle by vehicle owners is not a justified Act. Petitioner has relied upon Maruti Udyog Ltd., vs Susheel Kumar Gabotra and Anr., in CA No. 3735 of 2000 - (20060 4 SCC 644 which held that the inference of any manufacturing defect does not justify replacement of the car itself.
4. The respondent contended that the vehicle had periodically suffered breakdowns and that this was due to an inherent manufacturing defect. The car broke down after running for 10,000 kms on 03.05.2003 and was required to be sent to the workshop frequently. The vehicle was purchased on 16.01.2003 and the seizure of the engine occurred on 31.03.2004, i.e., within 15 months of purchase. The orders of the lower fora are justified by the respondent on the grounds that there was deficiency in service.
5. Both the petitioner and the respondents approached the State Commission in appeals. These appeals were disposed of by way of a common order on 01.10.2013 as below:
"After the above discussions, in our opinion the dealer has not produced any affidavit or mechanical report in his support from which this fact can be forced that the engine has been ceased due to the fault of the complainant. Only the affidavit of respondent no.4 has been filed, who is actually neither a mechanic nor mechanical engineer. The above problem could be got checked by sending engineer of the company by the respondents but the respondents had very rude behavior towards the complainant because of which the complainant had to suffer problems instead of convenience because there is no record or evidence available on file which shows that for the problem of the engine any specialists from the company was called or it was shown to him but the respondent no.4 demanded charges for its repairing and also demanded written permission for the same which comes under the category of unfair trade practice, because the problem was occurred in the vehicle during the warranty period as the warranty of the vehicle has been mentioned in the service book as upto 18 months or 50,000 kms. Demanding charges for the repairing of the main problem relating to engine during the warranty period and that too without the opinion of any expert cannot be said to be justified.
Issuing letter to the complainant demanding parking charges at the rate of Rs.250/- per day is also shown to the unjustified. According to the advocate, vehicle of the complainant is lying with the respondent no.4, hence, what will be the condition of the vehicle during this eight years period it can automatically be presumed that the value of the vehicle, its body, tyres etc., becomes weak while the vehicle remained standing continuously. If the respondents wanted then they could have hand over the vehicle to the complainant after repairing the same, after getting necessary orders from the Forum and they could also produce bills regarding its expenses but because of the rude behavior of the respondent no.4 the complainant had to suffer great tension and mental agony and it will be treated as deficiency in service of the respondents.
So far as the question of vehicle is concerned, the vehicle has now become eight years old which has no value for the complainant. It clearly shows from the file that this dispute has been arisen because of the fault in the engine during the warranty period and this situation has been occurred as the same was not repaired by the respondent no.4. Under these situations in our opinion by setting aside the order of the Lower Forum, allowing the appeal of the complainant is in the interest of justice, because with regard to the vehicle complete cheques may have been given by the complainant as the vehicle was hypothecated with ICICI Bank. It is available in the file. The complainant has also not used the said vehicle and in the file clear mistake of the respondent no.4 is shown as even being the dealer of so big company, harassing the consumer and not satisfying the consumers will be fully treated as deficiency in service by the respondents. Hence, allowing the appeal of the complainant and providing her new vehicle is appropriate because the vehicle in question is in possession of the respondent no.4 since last seven years. In such situation it is obvious that many other defects may have been caused in the said vehicle. The above manufacturing defect and the engine could have been repaired or replaced by the respondent no.4 but he has not fulfilled his duty and has done deficiency in service. Under these circumstances it is in the interest of justice that the respondent no.4 will pay Rs.1,00,000/- as compensation, Rs.11,000/- as cost of litigation and give a new vehicle of the same value to the complainant. It is also in the interest of justice that the complainant be given damages of Rs.1,50,000/- as she has not used that vehicle for seven years.
Resultantly, appeal of the complainant is allowed and the impugned order dated 25.05.2005 of the forum is set aside and it is ordered that the respondents will provide a new vehicle of the same value to the complainant along with Rs.1,00,000/- as compensation, Rs.11,000/- as cost of litigation and Rs.1,50,000/- as damages for depriving the complainant from using the said vehicle. And as this entire situation has been occurred because of the fault of the respondent no.4, hence, the amount of Rs.1,00,000/- as compensation, Rs.11,000/- as cost of litigation and Rs.1,50,000/- as damages for depriving the complainant from using the said vehicle shall be paid to the complainant by the respondent no.4. And apart from this the new vehicle shall be provided to the company by the company.
Appeal of the appellants-opposite parties is baseless hence, dismissed."
The petitioner has impugned this order. It is prayed that the order be set aside as the order is erroneous and is not based on facts and the law as the State Commission acted without jurisdiction.
6. I have heard the learned counsel for the parties and have given careful consideration to the documents and evidence on record.
7. This Commission in exercise of its revisional jurisdiction is not required to re-assess and re-appreciate the evidence on record and substitute its own conclusion on facts. It can interfere with the findings of the foras below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21(b) of the Consumer Protection Act, 1986 is therefore, limited to cases where some prima facie error appears in the impugned order and different interpretation of same sets of facts has been held to be not permissible by the Hon'ble Supreme Court.
8. The Hon'ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Co. Ltd., (2011) 11 SCC 269, has held that "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". This principle was reiterated in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors - (2016) 8 Supreme Court Case 286 which held 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..."
9. In the instant case the petitioner has challenged the impugned order on the grounds that the State Commission has disregarded the fact that the District Forum did not follow the mandatory provisions of section 13(1)(b) of the Act and did not get an opinion from an 'appropriate laboratory'. No opinion of an expert was also taken. The lower fora have relied upon the report of a Surveyor and Loss Assessor appointed at their instance since the petitioner objected to his examining the vehicle and even filed a police complaint. The argument that the vehicle had been in the workshop of petitioner no. 2 for several years where it was abandoned by the respondent and would therefore not be in a fit condition as the reason for ordering that the vehicle be replaced by petitioner no. 1 disregards the fact that there is no privity of contract between the respondent and petitioner no. 1 who sells cars to respondent no.2. It also disregards the fact that the defect was in the engine and not the entire vehicle. All these facts were before the State Commission. The disregard of these facts in the impugned order makes it perverse. While the District Forum ordered repairs and some compensation, the order of the State Commission in ordering the replacement of the car with compensation, costs and damages is also without jurisdiction. No expert opinion under section 13 (1) (b) of the Act, has also been obtained. There is, therefore, material irregularity in the impugned order of the State Commission which warrants exercise of revisional jurisdiction of this Commission.
10. It is apparent that the impugned order is not based on facts and evidence on record and is perverse in that it has not adhered to the mandate of section 13(1) (b) of the Act. I, therefore, find merit in the revision petition. It is accordingly allowed and the impugned order of the State Commission is set aside. The order of the District Forum dated 25.05.2005 is hereby affirmed.
...................... SUBHASH CHANDRA PRESIDING MEMBER