Aggarwal Tractors vs Ram Pharan & Anr

Respondent No.2 has been served. None is present on its behalf. The said Respondent is proceeded ex parte.

The present Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act") has been filed against the order dated 20.06.2017 in Appeal No.69 of 2008 of the State Consumer Disputes Redressal Commission, Lucknow, Uttar Pradesh (for short "the State Commission"). The said Appeal was filed by the Petitioner against the order dated 26.09.2007 in Complaint No.6 of 2005 of the District Consumer Disputes Redressal Forum, Sharavasti (for short "the District Forum") whereby the Complaint was allowed and the following directions were issued by the District Forum:

"Complaint of the complainant Ram Pheran is accepted against the Opposite Party No.1 Agarwal Traders in the manner that Opposite Party No.1 will replace within two month old tractor MF 241 DIG Egal engine No.5125-1-59604 Chasis No.189381 and in place of it will give new tractor to the complainant Ram Pheran and will pay ₹20,000/- for mental physical and financial loss and ₹1,000/- as cost of litigation in lump sum. In case the order is not complied the Opposite Party No.1 will refund ₹3,29,000/- received from the complainant with 8% interest per annum from the date 14.11.2003 till the date of receiving."

By the impugned order, the findings of the District Forum were confirmed.

Aggrieved by the impugned order, the present Revision Petition has been filed wherein it is alleged that the evidences produced by the parties before the Fora below have not been properly considered and interpreted by the State Commission in the impugned order and certain documents were also not considered by the State Commission as well as the District Forum.

My attention is drawn to the document which is Form 21 and it is argued that the Form 21 clearly shows that the date of manufacturing of the tractor was 2002 and that this Form was handed over by the Petitioner to the Complainant's father and this clearly shows that it was within the knowledge of the Complainant that the manufacturing date of the tractor was January 2002. It is further argued that Sh. Janki, to whom the tractor was sold, was aware at the time of purchase of the tractor that its manufacturing date was January 2002 and that is why the discount of the said tractor was given to him. It is further argued that no document of any expert has been brought on record by the Respondent/Complainant to prove that the engine of the tractor was seized.

On these contentions, it is submitted that the impugned order suffers with illegality and is liable to be set aside.

It is argued on behalf of the Respondent No.1/Complainant that a quotation form was given by the Petitioner and in the quotation form, the manufacturing date was not mentioned. It is further submitted that in the receipts which were accepted at the time of purchase of the said tractor, the year of the manufacturing of that tractor was not mentioned. It is submitted that the Petitioner had adopted unfair trade practices since it had sold the same vehicle to another person in the year 2002 for a sum of ₹3,15,000/- and again sold the tractor to his father for higher sum, i.e., ₹3,29,000/-. It is further argued that the litigations are also pending against the first owner of the said tractor in the civil courts. It is further argued that the quotation form which was submitted to the father of the Respondent, did not disclose the manufacturing year. It is further argued that there is no dispute since it is admitted by the Petitioner in the reply filed before the District Forum that the year of the manufacturing of the said tractor is January 2002. It is further contended that the Complaint was not filed claiming damages for supply of defective tractor but the same was filed because the Petitioner had adopted unfair trade practice by selling a tractor of 2002 as a tractor of the manufacturing year 2003.

I have given thoughtful consideration to the rival contentions.

The Hon'ble Supreme Court in the "Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. - (2011) 11 SCC 269"

has clearly held that this Court is not required to re-assess and re-appreciate the evidences produced before the lower Fora and its jurisdiction is only limited to ascertain whether there is a wrong exercise of jurisdiction by the Fora below. The Hon'ble Supreme Court has held as under:

"23. 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. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora".

From the arguments of learned Counsel for the Petitioner, it is apparent that he calls upon this Commission to re-appreciate and re-assess the evidences produced before the lower Fora. This certainly is not permissible. As regards the witnesses and the contentions are concerned, the District Forum has elaborately discussed in its order of the evidences produced before it and also had given reasons for rejecting the contentions of the Petitioner. The District Forum has held as under:

"Complainant had stated that the tractor in question was sold earlier by Opposite Party No.1 to Shamim Ahmed on 14.06.2002 and the same tractor after painting and denting and stating to be new was sold by the Opposite Party on 29.11.2003 to his father Janki. For purchasing tractor in question loan of ₹2.5 lac was taken from the Bank and all the money was paid on 29.11.2003 but despite the sale tractor did not work even for 100 hours and defective and in the way it was shown to the repairer then it was known that tractor is old and the engine has seized. His father Janki had gone to the Opposite Party to lodge the complaint and asked him to deduct the money from the duration the tractor remained in his possession and to give new tractor but the associates of Opposite Party No.1 has beaten him and use abusive language and since that day Janki father of the complainant had not returned home. From the above mentioned fact presenting by the complainant Opposite Party No.1 has accepted this fact that old tractor was sold. Complainant has filed receipt document No.31 and 32 given by Opposite Party NO.1 and in them the rate and price of the tractor in question is shown as ₹3,40,00/- and after deducting the discount of ₹4,000/- amount of ₹3,36,000/- has been received from Janki. Now Opposite Party is arguing that the agreement of the tractor was done for ₹3,64,000/- and since the tractor was old rebate of ₹35,000/- was given, therefore, ₹3,29,000/- was received from Janki as price of the tractor according to receipt 31 and 32 when ₹3,36,000/- was received from Janki then after deducting the rebate of ₹35,000/- amounts comes to ₹3,01,000/- which Opposite Party should have received vide document no.31 and 32 but from Janki amount of ₹3,29,000/- has taken and the receipt is give to ₹3,36,000/-. In document No.31 and 32 it is not mentioned that Tractor is old or rebate of ₹35,000/- is given. It is also not mentioned that tractor was agreed to be sold for ₹3,64,000/- in this manner the clarification given by the Opposite Party No.1 is not mentioned. It is correct that it is accepted between the parties that the tractor has been sold and purchase for amount of ₹3,29,000/- but the above mentioned records regarding the tractor is not according to the above mentioned acceptance. If old tractor is sold for ₹3,29,000/- then the receipt should have been for ₹3,29,000/-. If additional goods of tractor has been taken or given then they should have also been mentioned which is being so.

Opposite Party No.1 in receipt No.31 and 32 dated 29.11.2003 has not written that old tractor has been sold. They have mentioned actual price of the tractor as ₹3,40,000/- and on this full rate tractor has been sold to Janki there is no mentioning of giving of rebate of ₹35,000/- i.e. the actual price of the new tractor which is company rate has been taken father of the complainant. In the present matter on 29.11.2003 complete money has been taken by the Opposite Party but no sale letter has been given. No separate agreement or contract or document of warrant/guarantee condition or record has been filed. In annexed document No.1 it is clear that new tractor in question was sold by Opposite Party NO.1 to Shamim Ahmed for ₹3,15,000/- and the same tractor after 17 month for sold to Janki for ₹3,29,000/-. From which it is clear that the old tractor was sold at new rate after taking excess price. In other words the tractor in question which was told was old and in the re-sale price in excess of the actual price of the new tractor was received in this manner Janki father of the complainant had paid price of new tractor and Opposite Party NO.1 has received price of new tractor that Opposite Party No.1 should have given new tractor and regarding the tractor sale letter should have been given on 29.11.2003 but Opposite Party has sold old tractor to father of the complainant stating it to be new, now regrinding the registration of the tractor in question which was got done in that manufacturing year of the tractor is mentioned as 2003 even when the correct manufacturing year of the tractor 2002. In this manner it is also prove that old tractor has been sold stating it to be new."

These findings are confirmed by the State Commission observing that the findings are not contrary to the evidences on record and the facts quoted by the parties in their pleadings.

Since there is a concurrent findings on the facts that the Petitioner had sold an old tractor of January 2002 as a new tractor to father of the Respondent, this Commission has no jurisdiction to re-appreciate the evidences and substitute its opinion.

As regards the contention that no evidence was led by the Respondent with regard to the fact that the engine of the tractor had seized is concerned, it was not the case of the Respondent in his Complaint that he was seeking damages or replacement on account of seizure of engine of his tractor. His claim was that an old tractor was supplied to him as a new one. Reliance by the learned Counsel for the Petitioner on the judgment of this Commission in "Sushila Auytomobiles Pvt. Ltd. Vs. Dr. Birendra Narain Prasad & Ors., III(2010)CPJ 130 (NC)" is therefore of no consequences and has no applicability on the facts of this case.

In view of the above facts and circumstances of the case, the Revision Petition has no merits and is dismissed.