Vipul Motors Pvt. Ltd vs Padmini Joshi & Anr

Subhash Chandra, Presiding Member

This revision petition under section 21(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 16.11.2016 in First Appeal No. 791 of 2016 of the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur (in short, the ‘State Commission’) dismissing the appeal of the petitioner against order dated 29.04.2016of the District Consumer Disputes Redressal Forum, Sawai Madhopur, Rajasthan (in short, the ‘District Forum’) in Consumer Complaint no. 373 of 2014. This order will also dispose off revision petition nos. 444 of 2017 and 445 of 2017 which arise from the same order in view of the facts being the same. For the sake of convenience, the facts are taken from RP 443 of 2017.

The brief facts of the case, according to the petitioner, are that the respondent booked a Maruti Gypsy vehicle of Harvest Green colour with its Sawai Madhopur branch on 10.02.2014 by depositing Rs 10,000/-. As the vehicle was not available in this colour, its production having been discontinued by respondent no. 2, the petitioner after seeking some time to supply the vehicle cancelled the booking on 25.08.2014 and refunded the booking amount vide cheque dated 22.08.2014 and cancelled the booking. However, this cheque was not encashed by the respondent no.1 who approached the District Forum by way of complainant which allowed the complaint on contest after notice, and held the petitioner guilty of deficiency in service and awarded the respondent RS 10,000/-, the booking amount, Rs 1,00,000/- towards mental agony and financial loss and Rs 5,000/- as costs to be paid within 3 months of the order. The petitioner’s appeal before the State Commission was dismissed in view of its order in Appeal No. 652 of 2016 in Manager, Apra Auto (india) Pvt. Ltd. Vs. Radhey Shyam Sikarwar which related to the same matter. The petitioner assails this order by way of this revision petition on the ground that the booking was done for a commercial purpose by the respondent as multiple bookings were made by the respondent and her family members with the objective of using the vehicle for a commercial purpose of deploying it in the Ranthambore National Park and therefore she was not a ‘consumer’ under section 2(1)(d) of the Act. The fact of booking a total of 7 similar vehicles has been highlighted by the petitioner to argue that the petitioner is not a ‘consumer’ and that as per Hon’ble Supreme Courts judgments in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, Civil Appeal No. 4193 of 1995 decided on 04.04.1995, (1995) 3 SCC 583 the respondent had not established that the vehicle was required for earning her livelihood by means of self-employment and S.P. Chengalvaraya Naidu (Dead) by L.Rs Vs. Jagannath (Dead) by L.Rs & Ors., CA No. 994 of 1972 decided on 27.10.1993 that a person whose case is built on falsehood has no right to approach the court and that he can be summarily thrown out at any stage of the litigation. Reliance was also placed on this Commission’s order in Raghunandan Joshi (through LRs) & Ors. Vs. Manager, Bhatia & Co. & Anr., in CC No. 237 of 2018 dated 20.09.2018 which concerned a similar issue by the husband of the respondent in the instant case and the order of the State Commission allowing the appeal by the Dealer of Maruti Suzuki (India) Ltd (respondent 2 herein) was set aside.

Respondent no. 1 argued that the present petitions related to booking of one vehicle each and therefore the issue of 7 bookings was not relevant. It was argued that the petitioner was a ‘consumer’ within the meaning of section 2(1)(d) of the Act as the vehicle was booked to be deployed in the Ranthambhore National Park and the petitioner after booking the vehicle kept delaying the delivery and finally cancelled the booking on the ground that the vehicle was not available in the colour Harvest Green. According to the respondent, the delay prevented her from registering her vehicle with the Park authorities and to a loss of earning of Rs 2,00,000/- in the season. It is argued that the petitioner has failed to point out any infirmity in the order of the District Forum or the State Commission and has instead argued on other issues which are not germane to the present case. It is argued that one Mahaveer Prasad Sharma was sold a Gypsy of the Harvest Green colour on 02.07.2014 and therefore, the vehicles were available.

I have heard the learned counsel for the parties and carefully considered the material on record.

The issue regarding the sale of the Gypsy to Mahaveer Prasad Sharma was not raised before the lower fora. The document of sale dated 02.07.2014 by the respondent now sought to be brought on record has not been brought up earlier or even filed with the petition. It, therefore, cannot be taken on record at this stage.

While respondent no.2 in his written submission submitted that respondent no.1 had been intimated by it that Harvest Green Colour Gypsy vehicle has been discontinued, no evidence indicating communication of such decision to the petitioner by respondent no.1 has been filed. In the absence of any documentary evidence indicating any such communication to the petitioner being brought on record, cancellation of booking by the petitioner dated 14.06.2014 on the ground that the production of the Harvest Green Colour Gypsy was stopped cannot be accepted. The order of the State Commission relies on its earlier order dated 16.11.2016 in Appeal no. 652 of 2016 in Manager, Apra Auto (India) Pvt. Ltd., vs Radhey Shyam Singh Sikarwar and in FA no. 791 to 793 of 2016 dated 16.11.2016 as well as the order wherein the appeal of the present petitioner had been dismissed on similar grounds of there being no documentary proof to support the argument that the manufacture of Gypsy vehicle Harvest Green Colour had been discontinued by M/s Maruti Suzuki, respondent no.2, herein.

From the records 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 appeal. The concurrent findings on facts of these two foras are based on evidence led by the parties and documents on record. The State Commission has relied upon its previous order in a similar matter which does not appear to have been challenged before this Commission. 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. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.

This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds 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 based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is, therefore, limited to cases where some prima facie error appears in the impugned order. As laid down by the Hon’ble Supreme Court in Rubi (Chandra) Dutta (2011) 11 SCC 269 decided on 18.03.2011, Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors  (2016) 8 SCC 286 decided on 02.08.2016 and T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 decided on 05.04.2019, revisional jurisdiction is warranted to be exercised in cases of concurrent findings on facts by the lower fora only where there is either a jurisdictional error or a material irregularity resulting in miscarriage of justice. The Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel (supra) laid down that :

“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.”

No jurisdictional error or material irregularity has been established by the petitioner to justify reconsideration of the issue. In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence must be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.

In view of the discussion above and in the facts and circumstances of this case, I find no illegality or infirmity or perversity in the impugned order warranting any interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed. Revision Petitions RP 444 of 2017 and RP 445 of 2017 are also dismissed accordingly. There shall be no orders as to costs. IAs pending, if any, stand disposed of with this order.