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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 07.01.2019 of the State Consumer Disputes Redressal Commission, West Bengal, Kolkata , (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 604/2018 in which order dated 25.10.2017, District Consumer Disputes Redressal Forum, Kolkata Unit III (South) (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 09/2017 was challenged, inter alia praying to set aside the orders passed by the State Commission and District Forum.
While the Revision Petitioner (hereinafter also referred to as OP) was Appellant before the State Commission and OP before the District Forum; Respondent (hereinafter also referred to as complainant) was Respondent before the State Commission and complainant before the District Forum.
Notice was issued to the Respondent. Despite service, none appeared for respondent, hence vide order dated 15.12.2023 Respondent was proceeded ex-parte. Petitioner filed Written Arguments/Synopsis on 30.01.2023.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:-
The complainant purchased a car "FORCE ONE EX" from OP. The car was bought at a price of Rs. 10,21,330/- and delivered on 21.01.2015. Subsequent to the purchase, the complainant discovered several defects in the vehicle. Initially, the OBD light on the dashboard indicated an engine-related problem, which the sales manager attributed to low fuel. Despite refueling, the issue persisted. Over time, additional defects emerged, including malfunctioning door locks, a noisy fan belt that needed replacement within five months, a burst stepney tyre within one month, recurrent brake failures, coolant leakage, malfunctioning AC (despite multiple repairs), a non-working speedometer, engine oil leakage, low headlight intensity, alternator issues, belt noise, starting problems, frequent repairs necessitating numerous service center visits, high-intensity noise compared to other cars of the same model, and power window switch failures. The car even stopped twice on the road, requiring a push to start. These defects caused significant financial loss and inconvenience to the complainant. Despite contacting the OP's sales manager and technicians multiple times, the issues remained unresolved. Consequently, the complainant filed a consumer complaint seeking redress for the financial loss and inconvenience suffered due to the OP's deficiency in service and the substandard condition of the car.
Vide Order dated 25.10.2017, in the CC no. 09/2017 the District Forum has allowed the complaint and directed OPs to replace the car to the complainant with compensation of Rs 50,000/-.
Aggrieved by the said Order dated 25.10.2017 of District Forum, Petitioner/OP appealed in State Commission and the State Commission vide order dated 07.01.2019 in FA No.604/2018 has dismissed the appeal as being barred by limitation.
Petitioner has challenged the said Order dated 07.01.2019 of the State Commission mainly on following grounds:
i. The complaint case lacked territorial jurisdiction as the address of the OP falls within the jurisdiction of the District Forum, Howrah. The complaint is defective due to the non-joinder of Manufacturer Force Motors as a necessary party. The complaint failed to provide any expert opinion regarding manufacturing defects. The complaint did not adequately address the questions posed by the OP.
ii. The complaint did not specify the dates on which the manufacturing defects were noticed. The State Commission erred in holding that the relationship between the distributor and the manufacturer remains principal to principal. It is crucial to note that OP is merely a dealer who sells Force Motor's cars of different companies in exchange for commission.
iii. The State Commission and the District forum failed to acknowledge that there was no deficiency in service on the part of the OP. The complainant had serviced the car at the OP's service center on multiple occasions and had accepted delivery without any protest. Furthermore, the State Commission did not consider the documents submitted by the OP before the court.
Heard counsel of Petitioner. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below. Vide order dated 15.12.2023, Respondent was proceeded ex-parte.
The counsel for OP reiterated the same contentions as mentioned in grounds and relied on following judgements:-
i. Hindustan Motors Ltd. & Anr. Vs. N. Siva Kumar & Anr., (2000) 10 SCC 654, for the manufacturing defects in the vehicle, the dealer cannot be held liable, the liability must be borne by the manufacturer.
ii. Honda Siel Cars India Ltd. v. Major General M. J. S. Virk, 2016 SCC OnLine NCDRC 2085, Expert opinion must be taken in cases of automobiles having manufacturing defect.
iii. Jaika Automobiles Pvt. Ltd. v. Leela Sahu, 2017 SCC OnLine NCDRC 119, Dealer of goods cannot be held liable for manufacturing defect.
We have carefully gone through the orders of the State Commission, District Forum and other relevant records. The State Commission rejected the delay condonation petition and dismissed the appeal as being barred by limitation having been filed with a delay of 202 days. We have also considered the reasons for delay as contained in the condonation of delay application filed by the petitioner herein before the State Commission in the light of observations of Hon’ble Supreme Court in ‘Basawaraj and Another. Vs. Special Land Acquisition Officer (2013) 14 SCC 81’, ‘Esha Bhattcharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]’, ‘Sridevi Datla vs. Union of India & Ors. [(2021) 5 SCC 321]’, Manjunath Anandappa vs. Tammanasa & Ors. (2003) 10 SCC 390 and Sheo Raj Singh (deceased) through Legal Respresentative and Ors. Vs. Union of India and Anr. (2023) 10 SCC 531’.
In Sheo Raj Singh (Supra), Hon’ble Supreme Court while considering the appeal filed against an order of the High Court condoning the delay, observed that condonation of delay being a discretionary power available to courts, exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the lengths of delay being immaterial, each case for condonation of delay based on the existence or absence of sufficient cause has to be decided on its own facts and that a court of appeal should not ordinarily interfere with the discretion exercised by the courts below.
In Basawaraj (Supra) Hon’ble Supreme Court observed:
“15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.”
In Esha Bhattcharjee (Supra) Hon’ble Supreme Court observed:
“There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
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The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.”
In Manjunath Anandappa (Supra) Hon’ble Supreme Court observed:
“36. It is now also well settled that a court of appeal should not ordinarily interfere with the discretion exercised by the courts below.
In U.P. Coop. Federation Ltd. v. Sunder Bros. [AIR 1967 SC 249] the law is stated in the following terms: (AIR p. 253, para 8)
“8. It is well established that where the discretion vested in the court under Section 34 of the Indian Arbitration Act has been exercised by the lower court the appellate court should be slow to interfere with the exercise of that discretion. In dealing with the matter raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. As is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial Judge; but if it appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate court to interfere with the trial court's exercise of discretion.
…in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593….While traditional restraints like availability of alternative remedy hold back the court, and judicial power should not ordinarily rush in where the other two branches fear to tread, judicial daring is not daunted where glaring injustice demands even affirmative action…. an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.”
Primarily, it is the satisfaction of the fora considering the application for condonation of delay about the sufficiency of cause and we cannot substitute our satisfaction unless it is shown that the fora below improperly exercised its discretion to consider the application for delay and/or its order suffers from any illegality or material irregularity. After careful consideration of entire facts and circumstances of the case, orders of the State Commission as well as the reasons for delay contained in the condonation of delay application filed by the petitioner herein before the State Commission, we find no illegality or material irregularity or jurisdictional error in the order of the State Commission. We are in the agreement of the findings of the State Commission, hence the same is upheld. Accordingly, RP is dismissed.
The pending IAs in the case, if any, also stand disposed off.