Royal Electro Computers Pvt. Ltd. vs Pramod Kapadan

Subhash Chandra, Presiding Member

This revision petition filed under the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Dispute Redressal Commission, Maharashtra, Mumbai (in short, ‘State Commission’) in First Appeal No. 12/990 dated 25.07.2013 arising out of order dated 31.08.2012 in complaint no. 34 of 2008 of the District Consumer Disputes Redressal Commission, Pune (in short, ‘District Forum’).

The petitioner’s case is that on 09.07.2007 he had supplied a Compaq Presario computer, an HP LCD monitor and UPS at a cost of Rs.29,580/- to the respondent. Subsequently, the monitor was changed at the respondent’s request to a Compaq TFT LCD monitor for which the difference in price of Rs 1500/- was paid. The respondent had complained that the computer was defective and that based on the report/expert opinion of one Rohit Jhunjhunwala it was found that the computer had been supplied with pirated software and without various drivers in the form of CDs. Based on this report, the District Forum concluded that there was deficiency in service and ordered the petitioner to refund Rs.29,850/- with interest at 9% from 08.02.2008 with cost of Rs.1000/- within 6 weeks. The petitioner’s appeal before the State Commission was dismissed on the ground that the computer supplied was defective as per the technical expert with costs of Rs.10,000/- . The petitioner is before us challenging the report of the expert and contending that it was taken on record without opportunity to him to oppose it and therefore the findings of the lower fora are erroneous. He also contends that the technical report filed was not by any government laboratory and that the expert was not an ‘expert’ as required under the Act. He has therefore prayed that the impugned order be set aside.

We have heard the learned counsel for the petitioner. The respondent remained unrepresented despite notice including by dasti and final opportunity being provided to be present and was therefore placed ex parte. The records have been perused carefully.

The petitioner has not disputed that the software was pirated or that the drivers were not supplied. It is his contention that the report of the expert should not have been taken on record. The order of the District Forum is clear in mentioning that the parties were given the opportunity to lead their evidences and to present their case by way of arguments. The petitioner’s appeal before the State Commission was disallowed after due opportunity to both parties and also on the basis of the technical report of the expert. Thus the petitioner had contested the claim of the respondent on this ground at both the lower fora. His raising the issue before us is therefore an attempt to re-agitate the issue on the same grounds.

While this Commission has revisional jurisdiction, in exercise of this jurisdiction, it is not required to re-assess and re-appreciate the evidence on record and substitute its own conclusion on facts especially when the findings on the facts of the lower fora are concurrent on facts. This Commission can interfere with the concurrent findings of the foras below only on the ground 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 if they are based on conjecture or surmises. In other words, evidence which are either not part of the record or when material evidence on record is not considered. The Hon’ble Supreme Court in Rubi (Chandra) Dutta Vs United India Insurance Co. Ltd., (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.”

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

“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.”

The Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors Vs N Madhava Rao and Ors, dated 05.04.2019 again 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.”

In the instant case it is seen from the records that the lower fora have arrived at findings on the basis of the facts that were not in dispute.  No new fact or argument has been presented to indicate any illegality or perversity in the orders of the fora below. 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 the appeal. The concurrent findings on facts of the two lower foras are based on evidences led by the parties and documents on record. The power of this Commission to review under section 21 of the Consumer Protection Act, 1986 is limited to cases where some prima facie error appears in the impugned order. Different interpretation of the same sets of facts has been held to be not permissible by the Hon’ble Supreme Court. It is apparent that the foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner and based their findings on evidence on record. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse. 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.

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, and the fact that the petitioner has not raised any new fact. I find no illegality or infirmity or perversity in the impugned order. The present revision petition is found to be without merits and is accordingly dismissed.