Bhima Ram vs Marudhara Motors & 2 Ors

Subhash Chandra, Presiding Member

This revision petition under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Disputes Redressal Commission, Rajasthan, Circuit Bench, Jodhpur (in short, ‘State Commission’) in Appeal No. 186 of 2013 dated 08.10.2014 arising out of order dated 24.06.2013 of the District Consumer Disputes Redressal Forum-I, Jodhpur (in short, ‘District Forum’) in Complaint No. 523 of 2012.

Briefly stated, the facts of the case as stated by the petitioner, are that he had purchased a light goods vehicle TATA Venture EXI for his livelihood on 25.10.2011 for Rs 4,48,000/- from respondent no. 1. The vehicle was registered as RJ 04 UA 1979 and the petitioner paid Rs 16,999/- for insurance and cover note no. 914988 was issued on 24.10.2011 to respondent no. 3. On 06.11.2011, after 11 days of purchase, the vehicle met with an accident and FIR No. 55/11 was filed in Police Station, Gadra Road, Barmer. The insurance company was informed who appointed a surveyor. The vehicle was handed over to M/s Marudhara Motors for repairs and Rs 15,000/- was deposited with them subject to finalization of bill for repairs. It is stated that a bill was raised for Rs 3,31,065/- and the petitioner was asked to deposit Rs 1,50,000/- with the insurance company undertaking to pay the balance. Aggrieved by respondent 1 charging such a high amount for a vehicle that cost Rs 4.48 lakhs, the petitioner filed a consumer complaint before the District Forum. The petitioner contends that the vehicle had minor external scratches on the body-shell which did not warrant the replacement of the shell. It is contended that respondent no. 1 has been deficient in service and guilty of unfair trade practice in over charging the petitioner towards the repair work. The complaint was allowed against which respondent nos. 2 and 3 filed an appeal before the State Commission. After opportunity and hearing both parties, the State Commission affirmed the order of the District Forum. This order is impugned before us with the prayer that respondent no.1 handover the vehicle to the petitioner and this Commission pass any other order as deemed fit.

On the other hand, the respondent contends that the petitioner has not made ‘Tata Motors Finance Ltd’ a party to this revision which amounts to misjoinder of parties since it was a necessary party. According to the respondent, the petitioner had registered the vehicle for private use and also accordingly had it insured as a private vehicle. However, at the time of the accident, the vehicle was being used for a commercial purpose as a taxi as per the petitioner’s own averment which was violative of the Motor Vehicles Act as well as the terms of the insurance policy. It is, therefore, contended that the policy was rightly rejected by the respondent no. 2. It is also stated that the final report of the Surveyor, Sunil Mathur, dated 12.05.2012 had correctly assessed the loss at Rs 87,378.85. It is therefore prayed the revision petition be dismissed and the order of the District Forum be set aside.

The District Forum allowed the complaint filed by the respondents and held that

Therefore, the complaint-case of the complainant is accepted and nonapplicant no. 1 is ordered that by carrying out the repair of the original body-shell of the vehicle of the complainant within 15 days since the date of this judgment and the  nonapplicant no. 1 shall be entitled to receive and recover the amount of its repairs separately from the complaint; and out of the amount of the Bill Ex.10, after receiving the amount of rupees 1,43,326/- only from the complainant he shall handover the possession of the vehicle to the complainant. The nonapplicant nos. 2 and 3 are ordered that they shall jointly or severally pay the amount of Rs 87,378.85 paisa against him claimed in accordance with the survey report of the surveyor Sunil Mathur within a period of one month of the date of this judgement; and shall also remit the amount against the interest on this amount from the date of presentation of the complaint on 14th of August 2012 up to the date of remittance @ 9% per annum. Apart from this, the nonapplicant nos. 2 and 3 shall remit to the complainant a sum of Rs 10,000/- against the account of mental and financial loss during the aforesaid period and a sum of Rs 5000/- against the account of expenses of this complaint-case thus shall remit the total amount of Rs 5,000 only.

The respondent herein had approached the State Commission in Appeal No. 186 of 2013 which was decided on 08.10.2014 wherein it was held that

On behalf of the complainant this appeal has been filed with the prayer for issue of the bill of the actual damages by carrying out correction/amendment in the bill amount of repairing of the damages, and awarding of the insurance claim amount in accordance with the amount of the bill for repairing of the damages, as also for awarding the financial losses @ Rs 15,000/- per month till the date of handing over the vehicle and for carrying out correction of the entry in the registration certificate at the expense in accordance with the  of the nonapplicant no.1.

In our opinion, the order which has been passed by the District Forum for getting paid by the nonapplicant nos. 2 and 3 to the compensation in accordance with the report of the surveyor amounting to Rs 87,378.85 paisa only inclusive of the interest @ 9% per annum; and Rs 10,000/- against mental agony and Rs 5,000/- against the cost of the complaint-case; and the same is appropriate. Apart from these, the order directing the nonapplicant no. 1 to take out back to the new body-shell and install the the old body-shell after repairing the same, the same also appears to be appropriate. Now at this stage, we do not consider it proper to make any other enhancement therein. Therefore, the appeal of the complainant is liable of being dismissed.

Resultantly, while affirming to the order dated 24th of June, 2013 passed in the complaint case No. 523/2012 of the District Forum, Jodhpur (First), Jodhpur, the abovementioned all the three appeal are dismissed.

Respondent filed his written submissions. I have heard the learned counsels for both the parties and perused the material on record carefully.

It is manifest from the record that both the lower fora have considered the contentions of the parties and come to considered findings on facts after due opportunity to the parties and after an appreciation of the material available on record. The learned counsels for the parties have essentially urged the same issues that were agitated before the lower fora. The finding of the District Forum has been affirmed by the State Commission and hence the orders are concurrent in upholding the case of the petitioner before the District Forum.

This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora 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 of the Act 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.

The Hon’ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Company (2011) 11 SCC 269, has held that:

“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.”

Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors  (2016) 8 Supreme Court Case 286 held:

“17. 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. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

Again, the Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse. From the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidences led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction.

The foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner. It is seen that the orders of these fora are based on evidence on record.  In view of the settled proposition of law that where two interpretation of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.

In view of the foregoing, I find no illegality or infirmity or perversity in the impugned order warranting any interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed. Orders of the State Commission are affirmed with no order as to costs.