Dr. Rajesh & Anr vs Triloki Raghubani & Ors

Prem Narain, Presiding Member

This revision petition has been filed by the petitioner Dr. Rajesh and Anr., challenging the order dated 14.07.2008 passed by the Uttar Pradesh State Consumer Disputes Redressal Commission Lucknow in first appeal No. 472 of 1999.

The brief facts of the case are that on 17.07.1994, the complainant has purchased a Photostat machine for self-employment from opposite party no.2 (proprietor of opposite party no.1) and opposite party no.3 is the manufacturer of the said machine. The cost of the said machine paid by the complainant was Rs.98,000/- by taking loan from the bank and the opposite party no.2 has given guarantee of three months of the said machine which was effective from 01.08.1994 to 31.10.1994. On 07.08.1994, the said machine went out of order. It is alleged that opposite party no.1 did not turn up to repair the machine despite repeated reminders from the complainant.

On 28.10.1994, the complainant has initially filed a consumer complaint before the District Consumer Disputes Redressal Forum, Varanasi ('the District Forum') which was withdrawn on 27.08.1996 on the ground that the District Forum Varanasi was not having the territorial jurisdiction to entertain the said complaint. On 31.08.1996, the complainant has filed a fresh Consumer Complaint no. CC/1019/1996 before the District Forum, Allahabad (as the petitioner was residing at Allahabad District) seeking price of the machine, i.e., Rs.98,000/- with interest @ 18% per annum + Rs.50,000/- as compensation. Notice issued to the opposite parties received back 'undelivered', thereafter, the complainant served the opposite parties through publication in the local newspaper 'Nyayadish', but the opposite parties did not turn up.

The District Forum vide its order dated 31.07.1998 allowed the complaint and passed an ex parte order against the opposite parties and directed OP nos. 1 and 2 to pay the price of the Photostat machine, i.e., Rs.98,000/- and Rs.50,000/- as compensation and the said order be complied within two months.

Aggrieved by the order of the District Forum, the petitioner no.1/ opposite party no.2 preferred an appeal, being FA no. 472 of 1999 before the State Commission, Lucknow.

The State Commission vide its order dated 14.07.2008 partly allowed the appeal.

Hence, the present revision petition.

Heard the learned counsel for the petitioners as well as learned counsel for the respondent No.1/the complainant. None appeared for respondent No.2 and 3 in spite of service of notice through publication and therefore, they were proceeded ex-parte vide order dated 23rd February 2017.

The learned counsel for the petitioners stated that the photocopy machine was sold by opposite party No.3 and 4/ respondent No.2 and 3 and the petitioners are only the repairers of the machine who had taken the job of installation given by the seller company. There is no question of giving any warranty to the complainant by the petitioners as they were not authorized to give such warranty which can only be given by the manufacturer of the machine. The complainant has not filed any proof of such warranty having been given by the petitioners. Both the fora below have wrongly held that the petitioners were the agent of respondent No. 2 and 3 which is not supported by any proof. Moreover, the petitioners were proceeded ex-parte by the District Forum and therefore, they did not get any opportunity to present their version and to defend the case. Even if there was any manufacturing defect in the machine, it was only the manufacturer i.e., respondent No. 2 and 3 who should be made responsible and not the petitioners. Both the fora below have put all the responsibility on the petitioners and the seller company i.e. respondents No. 2 and 3 have been totally left out. Learned counsel further stated that as the petitioners were ex-parte before the District Forum, they could not raise the issue of territorial jurisdiction before the District Forum. In fact, District Forum Allahabad did not have any territorial jurisdiction as the machine was purchased from Haryana and it was installed within the jurisdiction of Varanasi district. It was requested that the order of the fora below should be set aside and the petitioners should be discharged from any liability.

On the other hand, the learned counsel for the respondent No.1/ complainant stated that petitioners were actually responsible for supplying as well as installing the machine in the premises of the complainant and they were corresponding with the complainant even on behalf of the respondent Nos. 2 and 3. Both the fora below have given a clear finding that the petitioners were the agent of respondent Nos. 2 and 3 i.e. opposite party nos. 3 and 4. Even the warranty of 3 months was given by the petitioners. Both the fora below have given concurrent finding that the petitioners were the agent of the respondent Nos. 2 and 3 and they had given the warranty but did not repair the machine within the warranty period. As the machine could not be repaired by the petitioners, the complainant could not carry on with the business for his livelihood and the whole purpose of purchasing the machine with a bank loan was frustrated.

I have carefully considered the arguments advanced by the learned counsel for both the parties and have examined the record. It is true that both the fora below have given a concurrent finding that the petitioners worked as agent of respondent Nos. 2 and 3 and were corresponding on behalf of the respondent Nos. 2 and 3 also. They had installed the machine but they did not come forward to take up the repair work when the machine was reported as not working just within a period of one week of its purchase. Against the concurrent finding of facts by the fora below, this Commission is restrained from reassessing the facts in the light of the decision of the Hon'ble Supreme Court in the case of Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 wherein the following has been observed:-

"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."

Thus, there is no doubt that the services of the petitioners have been deficient and the complainant has suffered loss of the machine as well as of his business. However, it is seen that the order of the State Commission is not clear in its intent. It is not clear whether the State Commission has ordered that only Rs.50,000/- be paid along with 9% interest per annum or amount of Rs.50,000/- is waived and the amount of Rs.98,000/- the cost of the machine is to be paid along with 9% per annum interest. Due to this ambiguity in the order of the State Commission, this order cannot be sustained in any way because its meaning is not clear. As the matter has become quite old, and the machine was supplied in the year 1994, I would not prefer remanding the matter to the State Commission for clarification of the order. In this background, I deem it appropriate to settle the dispute by upholding the order of the District Forum with the modification that the compensation will be only Rs.25,000/- instead of Rs.50,000/- as ordered by the District Forum. The order of the District Forum as modified by this order be complied by the petitioners within a period of 45 days from the date of receipt of this order failing which the total amount will attract interest at the rate 7% per annum from the date of this order till actual payment. The complainant will also be entitled to initiate the execution proceedings against the petitioners after the stipulated time. Accordingly, revision petition No. 4765 of 2008 stands disposed of.