Commercial Toyota and Anr vs Sh. Mukesh Gautam and Ors

Vipin Sanghi, J.—The petitioner by this writ petition under Article 226 of the Constitution of India assails the order dated 25.04.2012 passed by the National Consumer Disputes Redressal Commission in Delhi (National Commission), whereby the petitioner''s revision petition No. 987/2012 has been dismissed. Respondents No. 1 to 3 had preferred a consumer claim before the District Consumer Disputes Redressal Forum constituted under the Consumer Protection Act. The claim of the said respondents was that they had booked a Toyota Qualis with the petitioner. Though the model that they had booked was Euro 1 C-1, and had even paid for the said model, they had been delivered the vehicle with model No. Euro 1 B2, which was a cheaper version of the said vehicle. The vehicle had been purchased on 06.11.2001 whereas the complaint had been preferred on April, 2004. The said respondent- complainants, however, had pleaded in para 7 that the said defect came to their knowledge after one year because the said complainants were not aware about the technical knowledge about the vehicle.

Upon issuance of notice, the petitioner herein had filed its written statement. In para 20 of the written statement, the petitioner raised an objection that the vehicle had been purchased on 26.11.2011 and the complaint had been preferred about 21/2 years later and, therefore, the complaint was barred by limitation.

The District Forum allowed the said complaint with Costs and directed the petitioner herein to refund the amount of Rs. 74,000/- along with 18% interest per annum. The said amount represented the difference between the two models. The petitioner preferred an appeal before the State Commission constituted under the Consumer Protection Act. The State Commission reduced the rate of interest from 18% per annum to 7% per annum, while maintaining the order of the District Forum.

The petitioner then preferred a revision petition before the National Commission which has been dismissed. The National Commission observed that the finding of the two Forums below on the issues on merits were findings of fact, based on evidence, and the same cannot be interfered with in revisional jurisdiction. The petitioner''s submission that the claim was barred by limitation was dealt with by the National Commission in the following manner:-

Counsel for the petitioner, then, contends that the complaint filed by the respondents was beyond the period of two years and thus liable to be dismissed as barred by time. Petitioner had raised the point regarding limitation in the Written Statement but neither an issue was framed nor was it decided by the District Forum. The State Commission has also not decided this point. Question of limitation is a mixed question of law and facts. Perhaps petitioner did not press this point before the fora below. Since this point was not pressed by the fora below the petitioner cannot be allowed to argue this point at this stage.

The submission of learned counsel for the petitioner is that u/s 24A of the Consumer Protection Act, it was the obligation of the District Forum to have rejected the claim petition, as it was barred by limitation and no application had been made by the claimants to seek condonation of delay.

As noticed by the National Commission, though the plea of limitation/time bar was raised by the petitioner in their written statement, no issue was sought to be framed on the aspect of limitation at the instance of the petitioner. The petitioner candidly admits that there is no discussion on the aspect of limitation in the order passed by the District Forum, and, despite that being the position, no ground of limitation was raised in the first appeal preferred before the State Commission. The petitioner did not raise a grievance in its first appeal that the District Forum had not decided the petitioner''s objection on the ground of limitation.

The submission of learned counsel for the petitioner that the District Forum should have, on its own, refused to entertain the consumer claim on account of the claim being barred by limitation, and also on account of an objection being raised in the petitioner''s written statement, cannot be accepted for the reason that on the face of it, it could not be said that the consumer claim was barred by limitation. The consumer claim in para 7 stated as follows:-

That the vehicle Euro-1-B-2 in place of Euro 1-C-1 was given by the opposite party and said fact came to in the knowledge of complainant after one year because the complainant was not aware about the technical knowledge about the vehicle.

The District Forum could not have assumed that the aforesaid averment was untrue. In fact, the District Forum was bound to proceed at the initial stage on the assumption that the said averment was true and correct. If the aforesaid statement is accepted as true and correct, surely the complaint could not be said to be barred by limitation. Only if the said averment had been controverted and an issue had been sought to be raised by the non-complainant, who is the petitioner herein, the District Forum could have gone into the said issue. It appears that the petitioner did not raise any such issue, even though an averment was made in the written statement. Had the petitioner been aggrieved by the failure of the District Forum to frame an issue and decide the same on the aspect of limitation, certainly the petitioner would have raised the said issue in its first appeal, which was admittedly not done.

The issue of limitation, as rightly observed by the learned National Commission, was a mixed question of fact and law, as it depended on the determination of the issue as to when the respondent-complainants got knowledge of the alleged fraud, and when the cause of action last arose in their favour. The petitioner did not seek the determination of the said issue. The said mixed question of fact and law could not have been raised for the first time in the revision proceedings before the National Commission.

Reliance placed by learned counsel for the petitioner on the decisions of the Supreme Court in State Bank of India V. B.S. Agricultural Industries (I), II 2009 CPJ 29 (SC); Dr. V.N. Shrikhande V. Mrs. Anita Sena Fernandes, 2010 STPL(LE) 44393 SC; and Sigma Diagnosti7cs Ltd. V. United India Insurance Co. Ltd & Anr, III (2009) CPJ 75 (SC), is misplaced, since the facts of the present case are dis - similar. This Court while examining the orders passed by the Tribunals, in exercise of this Court''s power of judicial review, does not sit in appeal and does not go into the merits of the disputes between the parties. The jurisdiction of this Court is only to see whether the Tribunal has complied with the due procedure of law and the principles of natural justice, and also to see whether there has been a complete failure of justice on account of any perversity. Reference may be made to the decision of the Full Bench of this Court in Ravinder Kumar Vs. Union of India & Ors., 2002 VIII AD (Delhi) 252. In my view, the present is not a fit case which calls for interference by this Court in exercise of its power of judicial review of the order passed by the National Commission.

Dismissed.