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Judgment
The present revision petition has been filed against the order dated 28.6.2016 whereby the appeal of the petitioner against the order of the District Forum dated 2.2.2016 was partly allowed.
The brief facts of the case are that the respondent/complainant (hereinafter called "the complainant") purchased Mini Mobile Batching machine for a sum of Rs.4.5 lacs inclusive of all taxes from the petitioner. The product was under warranty for a period of one year. The product, however, developed snags and was not running properly. Therefore, the petitioner was informed by the complainant. The petitioner did the repair work twice but still the product could not run properly. Even some parts of the product were replaced, despite that the machine did not run properly. The complainant had purchased the said machine for his business which he was doing for his livelihood and he was using said machine in that business. Aggrieved by the fact that the machine was not working properly, the complainant filed the complaint.
The petitioner took the plea that the complainant was not a consumer since he was using the machine for commercial purpose and that the motor and other electronic parts were not under warranty. All the other contentions were admitted.
Parties led their evidences before the District Forum. The District Forum after going through the evidences on record reached to the conclusion, relying on the judgment of tis Commission in Viewtech Imaging Equipment Pvt. Ltd. & Anr. vs. CMC Ltd. & Anr., 2008 (2) CPJ 240 , that the complainant is a consumer within the meaning of Consumer Protection Act, 1986. It also reached to the conclusion on the basis of evidences on record that the machine was defective from the very beginning and the fact that even the petitioner could not repair it properly despite repairing it twice, goes to show that there was some serious defect in the machine and concluded that there was deficiency in service on the part of the petitioner. Following directions were issued by the District Forum: -
"i. To refund Rs.4,10,000/- being the price of the machine in question to the complainant.
ii. To pay Rs.25,000/- as compensation for mental agony and harassment.
iii. To pay Rs.5,500/- as costs of litigation."
This order is impugned before the State Commission by the petitioner. The similar contentions were raised before the State Commission. The State Commission also relying on the judgment of Hon'ble Supreme Court in the case of Lakshmi Engineering Works vs. P.S.G. Industrial Institute, 1995 AIR 1428, 1995 SCC (3) 583 reached to the conclusion that the complainant is a consumer. It also, after re-appreciating and reassessing the evidences on record reached to the conclusion that since the machine was defective from the very beginning as it could not run properly and the defects were reported immediately within a short span of few days of purchase, a defective good was supplied and therefore there was deficiency in service on the part of the petitioner. It also rejected the contention of the petitioner that the machine had developed faults because it was being used by unskilled persons, on the ground that no evidence to this effect has been led by the petitioner. After going through the evidences on record and re-appreciating it, the State Commission concluded that there was a deficiency in service and issued the following directions: -
"i. The relief qua refund of amount of Rs.4,10,000/- being price of the machine in question, and also Rs.5,000/- towards litigation expenses, granted by the Forum, shall remain intact.
ii. The relief qua compensation to the tune of Rs.25,000/- for mental agony and physical harassment, is set aside.
iii. This order shall be complied with by the appellant, within a period of 45 days, from the date of receipt of a certified copy of the same, failing which the amounts mentioned at sr. no. (i) above shall carry interest @ 9% p.a. from the date of filing the consumer complaint, till realization."
This order is impugned before us by the petitioner on the same grounds which were raised before the Fora below. The contention is that the complainant is not a consumer. Learned counsel has failed to point out any piece of evidence which could suggest even remotely that the complainant was in the business of letting out or giving on hire the machine in question. Evidence clearly shows that he was using it for his own business which he was doing to earn his livelihood. There is no jurisdictional error in the finding of the Fora below that the complainant is a consumer.
It is further argued on behalf of the petitioner that the motor and other electronic parts of the machine were not covered under the warranty, hence they were not under any obligation to replace or repair it yet out of courtesy and magnanimity they had repaired the machine twice and replaced the motor which was an electrical item. It is argued that in view of this the relief granted to the complainant is unfounded. Learned counsel for the petitioner also submits that the although State Commission had ordered for the refund of the cost of the motor but had not directed the handing over of the motor to the petitioner. We have gone through the documents. It is apparent that Rs.4,10,000/- which has been awarded by the State Commission is not the cost of the product. The cost of the product was Rs.4,50,000/-. This argument, therefore, has no merit.
Learned counsel for the complainant has argued that the machine had developed snags from the very beginning and did not run properly even for a single day and hence a defective machine was supplied to the complainant and it amounts to unfair trade practice for supplying defective good.
We have given thoughtful consideration to the argument. From the documents and the evidence on record it is apparent that the machine did not run properly even for a single day even after getting it repaired and therefore it is apparent that a defective product was supplied by the petitioner to the complainant. It certainly amounts to unfair trade practice and deficiency in -service. We found no infirmity or illegality in the order passed by the Fora below. Jurisdiction of this Commission under Section 21 (b) is very limited. This Commission is not required to re-appreciate and reassess the evidences and reach to its own conclusion. The Court can intervene only when the petitioner succeeds in showing that the Fora below has wrongly exercised its jurisdiction or there is a miscarriage of justice. Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd . (2011) 11 SCC 269 has held as under: -
"13. 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."
Same principle has been reiterated by Hon'ble Supreme Court in the case of Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H & R Johnson (India) Ltd. and Ors. (2016 8 SCC 286 wherein Hon'ble Supreme Court has held as under:
"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has failed to exercise their jurisdiction or exercised when the same was not vested in their 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."
From the record it is apparent that the Fora below have passed the impugned order on the basis of facts proved on record. There is nothing on record to show that it has exercised its jurisdiction wrongly. It is also not shown that any miscarriage of justice is caused to the petitioner. We find no illegality or infirmity in the impugned order. The present revision petition has no merit and the same is dismissed. The order of the State Commission is hereby confirmed. While confirming it the petitioner is directed to comply with the order within 45 days, failing which it shall be liable to pay interest @ 9% p.a. from the date of this order till realization. The amount already deposited shall be released to the complainant towards part satisfaction of this order.