1. In this revision petition filed by Petitioner/Opposite Party No.1, there is challenge to impugned order dated 27.05.2015 passed by State Consumer Disputes Redressal Commission, Bihar: Patna (for short, `State Commission').
2. Brief facts are, that Respondent No.1/Complainant purchased a Mahindra Maximo Vehicle from Petitioner/Opposite Parties No.1 and 2, an authorised dealer of Mahindra & Mahindra. Respondent No.1 paid Rs.one lac and balance amount was to be paid in instalments. After two months from purchase of the vehicle, it started giving troubles. Respondent No.1 took the vehicle to the garage and same was repaired. However, it continued to give troubles and even after repairs it never functioned properly. It is further stated, that defects have developed twice in the engine of the vehicle. Lastly, respondent no.1 asked petitioner to give him another vehicle in lieu thereof or to give him compensation. Ultimately, it was decided that a sum of Rs.400/- per month shall be paid to respondent no.1, till the vehicle is repaired. Thereafter, on 13.12.2010 petitioner gave a cheque of Rs.11,600/- to respondent no.1 and balance amount would be given later on. It is stated, that vehicle in question has been lying being out of order in the workshop of the petitioner and he has neither repaired the same nor has replaced the same. Thus alleging deficiency, respondent no.1 filed a consumer complaint seeking following reliefs;
"(i) That, the respondent may kindly be directed to change the Mahindra Maximo of the applicant and give him another new Mahindra vehicle to the applicant without any delay.
(ii) That, the respondent may kindly be directed to give the amount of Rs.two lacs, which the applicant has spent in repair of the vehicle, and the amount of compensation against the financial, physical and mental agony suffered by the applicant without any delay to the applicant."
3. Petitioner in its written statement has admitted the factum of purchase of the vehicle by respondent no.1 from it. It is stated, that respondent no.1 came along with his vehicle and technician found that self was burnt due to mishandling and negligent driving and the same was replaced without cost. It is stated, that it is the driver of the vehicle who has been driving the vehicle rashly and negligently. Further, petitioner admits that it has given Rs.11,600/- to respondent no.1 as a gesture and has not promised to pay any further amount. Lastly, petitioner admits that during warranty period, vehicle was repaired by the petitioner's technician by changing so many parts.
4. District Consumer Disputes Redressal Forum, Begusarai (for short, `District Forum') vide its order dated 03.04.2013 allowed the complaint and passed following directions;
"We, therefore, find and hold that the vehicle sold to the complainant by the OPs was defective from the very beginning. The vehicle was apparently purchased on 19.04.2010 and the OPs paid compensation of Rs.11,600/- to the complainant on 13.12.2010 which is within the period or warranty which substantiate the claim. We, therefore order that vehicle purchased by the complainant be replaced with new Mahindra Maximo Vehicle and down payment made by the complainant and the instalments paid be adjusted towards the new vehicle.
Cost of Rs.5,000/-(Five Thousand Rupees) is also imposed on the OP. Order be complied within ..(Illegible).. This case is allowed."
5. Being aggrieved, petitioner filed appeal before the State Commission which dismissed the same.
6. Notice of revision petition was issued to the respondents. Respondent No.1 put in its appearance through counsel. However, Respondent No.2 did not appear despite service and was proceeded ex parte.
7. We have heard the learned counsel for petitioner as well as counsel for respondent no.1 and gone through the record.
8. It is submitted by learned counsel for petitioner, that Section 13(1) (c) of the Consumer Protection Act, 1986(for short, `Act'), mandates that where the complainant alleges a defect in the goods which cannot be determined without proper analysis and tests, the Consumer Fora shall obtain an opinion of expert as the case may be. In the present case, an Advocate was appointed as a Local Commissioner but he was not an expert to ascertain the alleged defects in the vehicle. Thus, Fora below did not follow prescribed procedure in order to establish the deficiency and/or defects in the vehicle. In support, learned counsel relied upon following judgments;
(i) Krishanpal Singh v. Tata Motors Limited, (2014) 2 CPJ 1731 (NC) and
(ii) Skoda Auto India P. Ltd. and Ors. v. Bhawesh Narula, (Revision Petition No.1717 of 2014 decided by this Commission on 03.08.2015)
9. On the other hand it is contended by learned counsel for respondent no.1,that defects appeared in the vehicle only after two months from the date of purchase. Number of times vehicle was taken to the workshop of the petitioner for repairs but the same has not been repaired, till date. Moreover, both Fora below have decided the case in favour of respondent no.1.
10. District Forum in its order held;
"During course of trial an advocate commissioner was appointed to inspect the vehicle. The learned advocate commissioner visited the spot and found that the concerned vehicle was on the road in front of Satyam Automobiles gate in abandoned condition.
He also found that the vehicle was damaged. He enquired from one Shyam Sunder Singh who claims to General Manager, Sales and Service of Satyam Automobile. He informed the Advocate Commissioner that repair work had been done by Satyam Automobile and what his compensation has also paid to the owner of the vehicle. He also informed that the company was ready to repair the vehicle the vehicle owner did not agree. He also informed that there were defects in the model of the vehicle.
It is apparent that the vehicle was purchased by the petitioner from the OP Company. The vehicle was purchased on 19.04.2010. It also transpires from the exhibit that since 14.11.20010, the vehicle developed trouble. The OPs gave a cheque to the complainant on 13.12.2010 for Rs.11,600/- towards compensation (Ext-OP/5). During the period of warranty also the vehicle went to the workshop of the OPs for repair work which is apparent from the exhibits. The vehicle time and again developed troubles and the complainant was never able to ply the vehicle properly. The cheque of Rs.11,600/- Ext. C/29 which is dated 13.12.2010 and which has also been filed by OP which has been marked Ext-OP/5 clearly indicates that compensation had been paid to the complainant by the OPs with regard to the defects in the vehicle. This is itself establishes the claim of the complainant that defective vehicle had been sold to him by the opposite party."
11. The State Commission while dismissing the appeal observed;
"6. Considering the submissions of the parties and on perusal of the order passed by the District Forum, it appears that the vehicle purchased by the respondent-complainant from the appellant dealer was defective for which the respondent visited numerous times for repairing of vehicle. Engine was changed on 17.04.2011, starter Motor was changed, oil filter changed, gas kit cylinder, piston ring was changed on 20.09.2011. But, the vehicle was still defective and not in position to run smoothly on the road. Defective vehicle is still lying with the appellant signifying manufacturing defects. There is no justification or any cogent explanation brought on record on behalf of the appellant as to why the defects were not removed and the vehicle was plying smoothly on the road. The consumer, who has paid full price of a new vehicle, cannot be cheated by supplying a defective vehicle. In such circumstances, we concur with the finding of the learned District Forum that it is a serious deficiency on the part of the dealer as well as the manufacturer. We further find that the liability of the dealer as well as manufacture is joint and several.
7. We, accordingly, directed the appellant with O.P. Manager, Mahindra & Mahindra Ltd, Boring Canal Road, Patna to replace the vehicle by new one on the price already paid by the Complainant-Respondent within a period of two months on receipt/production of copy of this order along with compensation and litigation cost awarded by the District Forum. In case of failure to replace the vehicle within stipulated period, the appellant with manufacturer would refund the amount of deposit by the complainant, against the price of the vehicle with interest @ 10% p.a. within the aforesaid period.
8. The appeal is dismissed."
12. It is an admitted fact, that vehicle was taken number of times to the workshop of petitioner for repairs. In the grounds of appeal, petitioner itself admits that;
"petitioner had replaced the engine and other parts as and when the respondent no.1 complained for the same."
13. Therefore the above fact goes on to show, that engine of vehicle has been replaced within a short period of one year from the date of purchase. Thus, there has been inherent defects in the vehicle, otherwise there was no occasion for replacing the engine. In addition, petitioner has paid a sum of Rs.11,600/- to respondent no.1. Though it is the case of petitioner, that same was paid as a gesture of goodwill, but the fact remain that the aforesaid amount has been paid to respondent no.1 since there were defects in the vehicle. Otherwise, there was no occasion for petitioner to pay a sum of Rs.11,600/- to respondent no.1, even during the warranty period.
14. This plea of petitioner that no expert was appointed in this case, is not sustainable in view of the admission made by petitioner itself, that engine of vehicle has been replaced. Thus, it is a case of "Res ipsa loquitur", which means that facts speak for itself. Replacement of engine of the vehicle on 17.04.2011, by petitioner itself goes on to show that vehicle has inherent defects and that is, why it required replacement of the engine within one year of its sale.
15. It is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. This Commission can interfere with the order of the State Commission only where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
16. The Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 has 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
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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". 17. From the examination above, it is clear that reasonings of the State Commission are based on correct appreciation of the evidence on record. The impugned order does not suffer from any illegality, material irregularity or jurisdictional error which could justify intervention in exercise of powers under Section 21(b) of the Act. Thus, present revision petition having no legal force, is hereby dismissed 18. No order as to cost. Revision Petition dismissed.