JAYANT KUMAR AGARWAL v. MANAGER, M/S. KHOKAN AUTO DISTRIBUTOR PVT. LTD. & ANR.

repairs when a job card was prepared but no repair was possible due to non-availability of spares. Subsequently, respondent contacted the petitioner and offered to undertake repairs but at a higher cost as prices had escalated. The vehicle remained in the workshop till October

2012.

3. The petitioner was compelled to file a consumer complaint no. 32/D/12 before the District Forum, Darjeeling under section 12 of the Act in October 2012. Per the order of the District Forum the vehicle was handed over to the petitioner on 27.10.2012 but without any repairs being undertaken. The District Forum allowed the appeal on 18.12.2012 and directed as below:

"That the CC no. 32/D/12, be and the same is hereby partly allowed on contest with costs against the OPs.

The OP No.1 is directed to repair the vehicle to the full satisfaction of the complainant with the help of OP no.2 as free service. If not then refund the value of the vehicle after deduction of the mileage run. OP No.1 is further directed to refund Rs.5000/- paid by the complainant on 19.07.2012 along with interest @ 12% per annum with effect from 19.07.2012 till realization.

The OPs are jointly and severally directed to pay compensation of Rs.45,000/- and litigation cost of Rs.12,000/- to the complainant and the loss incurred by the complainant @ Rs.2000/- per day with effect from 21.09.2012 till the date of total repair of the vehicle.

The OPs are jointly and severally directed to deposit Rs.10,000/- towards Consumer Welfare Fund with learned Forum.

The order has to be complied with within 30 days from the date of order, failing which the OPs shall be liable to pay additional interest @ 6% per annum on the entire decretal amount and the complainant shall be at liberty to proceed with execution proceedings under section 25 and 27 of CP Act, 1986."

Petitioner also filed an Execution Application on 31.01.2013.

4. Respondent 1 approached the State Commission in first appeal no. 177 of 2013 which came to be disposed of on 31.07.2015 by way of the impugned order before us which reads:

"The foregoing facts and evidence leads us to hold that there was deficiency in service on the part of the appellants/ OPs and hence, we are inclined to allow the appeal in part and modify the impugned judgment and order to the following extent:

The appellant nos.1 and 2/ OP nos. 1 and 2 are directed to pay jointly and severally to the respondent/ complainant Rs.40,000/- as compensation and Rs.10,000/- as litigation cost with 45 days from the date of order, failing which simple interest @ 9% per annum shall accrue on the said amount for the entire period of default. i.

The other directions in the impugned judgment and order are set aside.ii. In the result, the impugned judgment and order is modified to the extent above."iii.

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5. The petitioner's case is that the fact that the vehicle was required to be brought to the respondent's workshop on nine occasions within one year of purchase and within the period of warranty is evidence that there was a major manufacturing issue in the vehicle. Job cards of the respondent have been submitted as evidence. The petitioner had argued for repair of the vehicle or, in the alternate, its replacement after allowing for the distance run during the period. The District Forum had directed repair with compensation and certain costs. However, the State Commission while allowing the appeal noted that the frequency, at which the vehicle was required to be brought to the garage for mechanical defects, had reduced the compensation direction with no directions regarding repairs at the cost of the respondent. It has been therefore prayed that the revision petition be allowed.

6. Respondent no.1 has already been proceeded ex parte vide order dated 19^thJuly 2018 and has not filed any written statement or arguments. The respondent no.2 has relied upon the findings of the State Commission and admitted that within the warranty period some defects in the vehicle were brought to the notice of respondent no.1 by the petitioner on many occasion and services provided by respondent no.1 to the satisfaction of the petitioner. However, deficiency in service has been denied since the respondents have principle to principle relationship and respondent no.2 and as the services were sought from respondent no.1, respondent no.2 cannot be held responsible for any deficiency. It is his case that the District Forum has erroneously held both the respondents liable for deficiency and issued directions jointly and severally to both of them.

7. Heard the learned counsel for the petitioner. The respondent remained unrepresented despite notice. Written arguments filed on his behalf and the records have been perused carefully.

8. This Commission in exercise of its revisional jurisdiction under section 21 (b) of the Act, 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.

9. The Hon'ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Co. Ltd., (2011) 11 SCC 269, has that "Also, it is to be noted 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 the case of Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors - (2016) 8 SCC 286 and it was 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…".

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10. In the instant case, it is not disputed that the petitioner had purchased the vehicle in question or that it was presented at the garage for repairs 9 times during the period less than a year, i.e. within the period of warranty. It is not denied that the vehicle was returned to the petitioner on the directions of the District Forum on 27.10.2012 on the directions of the District Forum without repairs. The State Commission while allowing the appeal notes specifically the vehicle was required to be brought to the authorised garage/workshop 9 times but was not repaired. In such a situation, deficiency in service is clearly established. The impugned order is silent regarding the reasons for modifying the orders of the State Commission. It is therefore liable to be set aside as it is perverse and suffers from a material irregularity.

11. It has also been argued that the vehicle had been purchased by the petitioner for commercial purpose and the same is not covered under section 2 (1) (d) of the Act. Respondent no.2 is the manufacturer of the vehicle in question and respondent no.1 is the distributor of the vehicle manufactured by respondent no.2. The vehicle was sold to the petitioner by respondent no.1. He also took the vehicle for repairs on several occasions to respondent no.1. Job cards and repair related assessments were also done by respondent no.1. The lower fora has therefore, correctly concluded that liability be jointly and severally fastened on both the respondent nos.1 and 2.

12. In view of the foregoing reasons, it is apparent that the State Commission's order is perverse and has not considered all the facts. The order is also not based on evidence on record submitted by the petitioner regarding the number of times the vehicle in question was required to be brought for servicing/repairs to the authorised workshop by the petitioner for repairs. The District Commission had directed repairs to be undertaken at the authorised workshop as the vehicle was still in the period of warranty. While noting the fact that the vehicle required to be brought for repairs 9 times during the warranty period as evidence that the vehicle needed to be repaired frequently which is indicative of a manufacturing defect, and awarding compensation after allowing the appeal, the State Commission is however silent on reasons for the repairs not being completed to the satisfaction of the vehicle owner or reducing the compensation awarded. I therefore, find that the State Commission has failed to exercise the jurisdiction vested in it and has committed material irregularity in not considering the facts and evidence before it. The revision petition is therefore allowed and the order of the State Commission is therefore liable to be set aside. Accordingly, the impugned order is set aside and the orders of the District Forum stands restored.

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SUBHASH CHANDRA

PRESIDING MEMBER

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