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Judgment
Subhash Chandra, Member
This revision petition under section 21 (b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 07.07.2022 of the State Consumer Dispute Redressal Commission, Odisha, Cuttack (in short, ‘State Commission’) dismissing First Appeal No. A/193/2014.
The brief facts of the case are that the respondent had purchased a color xerox machine from the petitioner on 11.12.2010 on payment of Rs.2,68,000/- for his livelihood, since he runs a business in the name of M/s Ratna Printers in Kendujhar, Orissa (also known as Keonjhar) as the manufacturer of the xerox machine. The petitioner executed the Full Maintenance Service Agreement (FSMA) with the respondent. The said machine had malfunctioned on 10.12.2011 and the respondent had lodged a complaint which was satisfactorily rectified under the FSMA by the petitioner. Thereafter another complaint was lodged on 20.01.2012 regarding the malfunctioning of the machine. This complaint was also duly attended to by the petitioner’s technician including replacement of the parts. However, the respondent did not sign the Service Call Note (SCN) and insisted that the machine be replaced. On 27.03.2012 respondent no.1 issued a legal notice to the petitioner alleging that the petitioner herein had failed to rectify the problem of ‘Ghost Image’ in the print quality and asked for the issue to be resolved. The petitioner, vide reply dated 09.07.2012, informed respondent no.1 that the problem was occurring since the machine was being used for graphic arts application. Respondent no.1 thereafter filed a consumer complaint no. 64 of 2012 before the District Consumer Disputes Redressal Forum, Kendujhar alleging deficiency in service on the part of the petitioner and respondent no.2. The complaint was contested by the petitioner on the grounds that the complainant was not a consumer with the terms of the Act and that the grievances raised had been addressed from time to time and that the machine was being used for the purpose that it was not designed for. The District Forum, vide its order dated 27.12.2013, held that that said machine had been purchased by the complainant for his livelihood and it could therefore not be said that it was purchased for commercial purpose. It was also held that the petitioner had failed to remove the defects despite attending to the complaints on two occasions and they did not come forward to remove the defects which rendered the present petitioner and respondent no.2 to be jointly and severally liable for deficiency in service. It therefore ordered as under:
“Accordingly, it is ordered and OPs are directed to repair and remove the defects in the machine without taking any charges from the complainant within 30 days of receipt of this order and further to pay Rs.5,000/- to the complainant within that period towards compensation for mental agony and financial loss and Rs.1000/- for cost of litigation failing which these amount will carry 10% interest per annum till realization”.
This order was appealed by the petitioner before the State Commission. The State Commission considered the fact that the machine had suffered from defects within the warranty period. The Commission had itself had the machine examined by an expert and his report dated 06.01.2015 that the machine had become defective was also considered. Accordingly, the State Commission proceeded to pass the following order:
“(9) It is admitted fact by both the parties that the Xerox machine was purchased by the complainant from OPno.1 and it became defective within the warranty period. It is also not in dispute that the complainant utilised the Xerox machine for earning his livelihood. However, most important document is the report of the expert called for by this Commission to appreciate the materials on record. We have gone through the record. It is seen that the OPs have verified the machine and found that there is so many defects as alleged by the complainant also. In such circumstances, it cannot be said that the allegation of the complainant is false one. We have also gone through the impugned order which is reasonable. Therefore, the impugned order is confirmed and the appeal stands dismissed. No cost.”
We have heard the submissions of the learned counsel for the petitioner and perused the records carefully.
No new facts or evidence has been placed on record before us.
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. Interference with concurrent findings of the fora below is justified only on grounds that findings are either perverse or that the fora below have acted without jurisdiction. Perversity can be concluded in findings when they are based on either evidence that has not been produced or on conjectures/ 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 error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.
The Hon’ble Supreme Court in Rubi (Chandra) Dutta - (2011) 11 SCC 269 (supra), 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.”
Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors (2016) 8 SCC 286 held:
“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.”
Again, the Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 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.”
The lower fora have pronounced detailed and reasoned orders. 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 evidences led by the parties and documents 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 and re-appreciate the evidence which cannot be done in revisional jurisdiction.
In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail. We therefore, find no illegality or infirmity or perversity in the impugned order. The present revision petition is therefore, found to be without merits and is accordingly dismissed.