V.G.O. Motor Pvt. Ltd vs Rajpal Singh & Anr

This revision petition has been filed by the petitioner V.G.O.Motor Pvt. Ltd. against the order dated 1.9.2017 of the State Consumer Disputes Redressal Commission, Haryana, (in short 'the State Commission') passed in Appeal No.1155/2016, which was filed by the petitioner who was opposite party No.2 in the original complaint.

Brief facts of the case are that respondent No.1/complainant filed a consumer complaint alleging that he was owner of car bearing registration No.70H-1111 and mileage per litre was very low and engine was also emitting smoke though he used to get the vehicle serviced from authorized service station. Ultimately in the month of May 2015 he took his car to petitioner. After inspection he was advised to get installed half new engine costing approximately Rs.25,000/- and believing them he gave consent for repairs. He deposited Rs.25,000/- vide receipt No.7522 dated 09.05.2015. After two days manager of opposite party No.2 i.e. V.G.O. Motor Pvt. Ltd. called him and told that entire engine was to be replaced for improvement. He protested about previous advice, but, engine was lying dismantled. He was left with no other alternative except to give consent about replacing of old engine costing Rs.1,25,000/-. It was told that engine would be of latest technology. On 24.05.2015 he was told that engine was replaced and he could take the vehicle. Bill of Rs.2,05,002/- was raised, in total he deposited Rs.1,72,668/-. It was told that average of the vehicle would be more than 20 KMs per litre. After driving car for five days, same defect erupted and he went to the workshop of opposite party No.2 on 31.05.2015. He was asked to pay Rs.337/- again. As there was no improvement, he took car to workshop of opposite party No.2 on 11.08.2015, 24.08.2015 and 29.09.2015, but to no use. As the problem persisted, the complainant filed a consumer complaint before the District Consumer Disputes Redressal Forum, Faridabad (in short 'the District Forum') being complaint No.451/2015. Before the District Forum Opposite party No.1 i.e. M/s. Ford India was given up and opposite party No.2 was proceeded ex-parte by District Forum and the District Forum ordered the following vide its order dated 03.05.2016 :-

"7. Opposite party No.2 is directed to refund an amount of Rs.1,65,549/- and to pay Rs.5500/- as compensation towards mental tension as well as harassment besides Rs.2200/- as litigation expenses to the complainant within 30 days from the date of receipt of this order failing which opposite party No.2 shall also pay interest @ 9% p.a. on the awarded amount of Rs.1,65,549/- from the date of filing of the present complaint till its realization."

Aggrieved by the order of the District Forum, an appeal was preferred by the petitioner before the State Commission being FA No.115/2016. However, the State Commission dismissed the appeal vide its order dated 01.9.2017.

Hence the present revision petition.

Heard the learned counsel for the petitioner and perused the record. Learned counsel for the petitioner stated that notice sent by the District Forum was never served on the petitioner. However, the District Forum presumed the service of notice under Section 28 of the Consumer Protection Act, 1986. The order of the District Forum is patently wrong because no declaration has been made by the District Forum inspite of alleged service having been affected on the petitioner/opposite party. The State Commission has not given any importance to this aspect of service of notice. The learned counsel argued that such declaration is mandatory under Section 28 of the Consumer Protection Act, 1986 and without such declaration, service of notice cannot be presumed. Learned counsel further stated that the bills relied by the State Commission relate to servicing of the engine and not for replacement of the engine. It was stated that the vehicle was manufactured in the year 2006 and it was brought to the petitioner in the year 2015. Thus, clearly there was no warranty, however, the complainant was insisting on warranty, which was not possible to accept by the petitioner. Whatever amount has been paid by the complainant, was only for the repair and servicing of the engine and for labour charges. The petitioner did not carry out replacement of the engine, however, the engine was repaired and the engine was brought in perfect condition. If afterward something happens to the vehicle, the petitioner is not responsible. Both the fora below have not appreciated this fact and therefore, the orders of the fora below are liable to be set aside.

I have given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and have examined the material on record. There is no doubt that the complainant has paid a total amount of Rs.1,72,668/- to the petitioner for setting right the engine of the vehicle as the same was emitting black smoke. Even if argument of the learned counsel is considered that the engine was not to be replaced and that was only to be repaired, the fact remains that even after repairing of the engine, the vehicle did not perform well and the same defects were noticed later on within a short period. The State Commission has observed the following:-

"8. Further from perusal of the bills Ex.P-3 to P-5 it is clear that complainant paid Rs.1,65,559/- for repairs and thereafter he paid Rs.337/- as mentioned in Ex.P-7. It shows that he spent huge amount on the repair of engine, but, even then problem was not removed. Bills Ex. P-6, P-8 and P-10 show that problem was persisting continuously. When entire engine was replaced there must have been some improvement. Even otherwise what was the engine number installed by O.P.No.2, is no-where mentioned in any invoice. It shows that complainant was kept under dark and O.Ps. charged such heavy amount and repaired only old vehicle. Learned District Forum rightly granted compensation as mentioned above. Finding of learned District Forum are well reasoned based on law and facts and cannot be disturbed. Resultantly appeal fails and the same is hereby dismissed."

From the above observation of the State Commission, it is clear that the petitioner has accepted money for repairing/replacement of the engine, but the same has not been properly set right. Both the fora below have given concurrent finding that the engine has not been properly repaired/replaced by the petitioner and therefore, the petitioner is liable to refund the amount taken from the complainant. As against concurrent finding of fact by the fora below, the scope under the revision petition becomes quite narrow as this Commission cannot reassess the facts as held by the Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654, wherein the following has been observed:-

"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 that 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 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 finding of two fora."

Apart from disputing the facts the petitioner has not raised any legal point. The only legal point raised is regarding order dated 05.01.2016 of the District Forum proceeding ex-parte against opposite party No.2 wherein the argument of the petitioner is that the District Forum has not given any declaration that the notice stands served on the opposite party No.2. The State Commission has dealt with this issue and has found that the order dated 5.1.2016 of the District Forum is in order in the light of Section 28 of Consumer Protection Act, 1986. The petitioner has already got opportunity to put forward his case before the State Commission at the appellate stage. It is seen that the order of the District Forum proceedings ex-parte against opposite party No.2 is supported by Section 28 of the Consumer Protection Act, 1986 and therefore, I do not find any merit in this argument of the learned counsel for the petitioner.

Moreover, it is seen that the present revision petition has been filed with delay of 95 days. In the application for condonation of delay the following has been mentioned:-

"3. That the petitioner is filing the present petition against the order dated 01.09.2017 which was dispatched to the petitioner by the Ld. State Commission only on 29.09.2017. The copy was received by the counsel for the petitioner only on 15.10.2017 and was then transmitted to the petitioner herein only on 07.11.2017. The petitioner was unwell during this time could not contact his counsel and was able to approach him only in the 3rd week of November, 2017, who opined that he would have to prefer Revision Petition against the order of the Ld. State Commission.

That the petitioner was also informed that he was required to get the entire evidence along with the documents exhibited so as to prefer the Revision Petition before this Hon'ble Commission. The petitioner could arrange for the necessary document only in the 3rd week of February, 2018 as it took considerable time in tracing the file in the Ld. Fora.

That the petitioner thereafter supplied the copy of the documents along with the orders to the counsel, however the petitioner was asked to get a copy of the appeal as well, which could be provided after procuring the same only on 10.03.2018. The counsel thereafter started preparation of the case, however, because of his ill-health is now filing the present petition before this Hon'ble Commission."

From the above, it is clear that at every stage the petitioner has taken time and that extra time taken at every stage is being given as a reason for delay in filing the present revision petition. The Hon'ble Supreme Court in R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, has observed:-

"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition".

In the present case, it is seen that the petitioner has not prosecuted his revision petition with reasonable diligence. Special limitation periods have been prescribed under Consumer Protection Act, 1986, its Rules 1987 and its Regulations 2005 for speedy disposal of consumer disputes. Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;

"It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras."

Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon'ble Supreme Court observed:-

"4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).

In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.

Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay".

The above authoritative judgments of the Hon'ble Supreme Court are fully applicable in the present case. Negligence and deliberate inaction and lack of bona fides are imputable to the petitioner in filing the present revision petition. I do not find reasons mentioned in the application for condonation of delay as convincing. Thus, sufficient cause has not been shown by the petitioner for condoning the delay. Consequently, the application for condonation of delay is dismissed.

Based on the above discussion, revision petition No.1009 of 2018 is dismissed on account of being barred by limitation as well as on merits as I do not find any illegality, material irregularity or jurisdictional error in the order dated 01.09.2017 of the State Commission, which calls for any interference from this Commission.