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R.B. Sharma & Another v/s Proprietor Sahu Automobiles & Another

    Revision Petition Nos. 2880 of 2010 & 439 of 2008

    Decided On, 05 December 2014

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Petitioners: In Person Along with Nikhil Jain, Advocate. For the Respondents: Divya Prakash Pande Along with Rajesh Kr Pandey, Advocates.

Judgment Text

Rekha Gupta, Member

Revision petition no. 2880 of 2010 and First Appeal no. 439 of 2008 have been filed under section 21 (B) of the Consumer Protection Act, 1986 against the orders dated 29.04.2010 & 22.09.2008 passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (‘the State Commission’) in First Appeal no. 1324 of 2004. Hence, we propose to pass a common order as these emanates from the very same complaint and first appeal.

2. The brief facts of the case are taken from Revision petition no. 2880 of 2010. Thecomplainant R B Sharma engaged the services of opposite party on 26.02.2001 for repair including denting and painting of his vehicle No.UP-78B-3962. The complainant had settled a sum of Rs.8500/- on account of the labour charges for the required work of denting, painting, dashboard work, brake change, steering booster, pipe line filling etc. The spare parts required to be fitted in the vehicle were to be provided by the complainant. The complainant had given an advance of Rs.2000/- for which no receipt was issued. The repair work was not carried out for several months. Whenever the complainant approached the opposite party, the opposite party evaded the issue on one pretext or the other. It is the case of the complainant that apart from the advance, of Rs.2000/- paid in February 2001, the petitioner had paid Rs.1000/- on 06.07.2001 and another Rs.1000/- on 07.07.2001 and Rs.1200/- on 17.08.2001. Despite that the opposite party did not carry out the denting painting work as per the settled terms and conditions. On the advice of the opposite party, the complainant got fitted a new radiator worth Rs.1700/- and a new battery worth Rs.1500/- in the vehicle. The opposite party, however, failed to complete the repair work. Claiming this to be a deficiency in service, a consumer complaint was filed in District Forum Kanpur City. The complainant prayed that the opposite party may be directed to make payment of Rs.1.80 lakh and till the payment is made pay a sum of Rs.500/- per day with interest at the rate of 12% thereon and Rs.5000/- for litigation expenses, advocate fees and mental agony.

3. The opposite party admitted to the extent that labour charges were settled for Rs.8400/-. The complainant, however, had only made payment of Rs.4,000/- for the first time on 12th June 2001. Further, he had tallied the job card with the inspection of the entire work done on the concerned vehicle. The spare parts were in fact purchased and fitted by the opposite party. The complainant had only provided battery and radiator and that also after a considerable gap. The opposite party denied that the complainant had paid Rs.2,000/- on 26.02.2001. The opposite party further stated that after making payment of Rs.4,000/- on 12.06.2001, the complainant left the work shop after stating that the remaining amount would be paid later on, but he did not turn up either for making the payment or taking the vehicle. In fact the road permit of the said vehicle has not been issued since 1995,neither the road tax or goods tax of the vehicle had been paid since 1997. Therefore, the complainant parked the vehicle in the workshop of the opposite party perhaps considering it to be a safe parking space for the vehicle.

4. The District Forum on consideration of the pleadings and evidence came to the conclusion that complainant has failed to pay the repair charges. Therefore, the opposite party was justified in detaining the vehicle. Thus, it was held that there was no deficiency in service on the part of the garage owner and the complaint was dismissed.

5. Being aggrieved of the order of the District Forum, the complainant preferred an appeal before the State Commission. The State Commission vide its order dated 29.04.2010 dismissed the appeal with a cost of Rs.5,000/-. The State Commission held that:

'havingregard to all the facts and circumstances of this case particularly the fact that the complainant did not pay a single penny after June 2001 until he had filed his complaint, we are of the decisive opinion that the respondent was not guilty of any deficiency in service. It may be mentioned that during the pending of this appeal a sum of Rs.3,000/- was deposited with this Commission. Now since the vehicle has been delivered to the complainant in functional order the complainant will pay the balance of Rs.2,000/- as submitted by Shri Amod Rathore learned Counsel for the respondent. The respondent would be authorized to withdraw the amount of Rs.3,000/- deposited with this Commission. Shri Rathore has asked the complainant for payment of Rs.2,000/- in round figure. Just to settle the long drawn pending dispute, we hope the complainant shall pay the said amount either by depositing it with the concerned District Consumer Forum or by sending it to the respondent directly.

With the above observations and clarifications as also directions this appeal is dismissed with costs which we quantify at Rs.5,000/-.'

6. Hence, this present revision petition.

7. We have heard the learned counsel for the complainant and the opposite party along with the complainant in person. We have also gone through the record. The complainant’s only grievance was that the vehicle had not been repaired to his satisfaction. He drew our attention in this regard to the photographs placed on the file.

8. Learned counsel for the opposite party drew our attention to the letter dated 05.06.2001 sent by him to the complainant wherein the opposite party had clearly written that due to the delay in advance payment for different vendors as promised by the complainant, they were unable to complete the repair work timely, because, denter, painter, electrician had left the work in the process due to non-payment. Thereafter, a letter was addressed to him on 21.11.2001 in which the opposite party had informed the complainant that after receiving the advance, they had started the repair of the vehicle which had been completed by the end of June 2001 and the balance amount was incurred by the opposite party as per the request of the complainant. The complainant had failed to pay the balance amount and collect the vehicle. Thereafter a legal notice was also issued to the petitioner in this regard.

9. The complainant has failed to give any evidence in support of his contention that though he made full payment,the opposite party has failed to carry out the repairs and kept the said vehicle for about seven years. It is apparent that since the complainant did not pay the labour charges agreed upon the denting painting work had not been completed, as also noted in the complainant’s reply to the legal notice dated 05.12.2001.

10. We have looked at the photographs dated 08.12.2007 which were prior to the date of repair and the photograph taken thereafter on 07.03.2009. It is quite evident from the photographs that the denting painting work has since been completed. There is a discernable difference in the condition of the in the photograph dated 08.12.2007 and 07.03.2009. We also note that the said vehicle has since been handed over on 03.03.2009.

11. The Hon’ble Supreme Court in Mrs Rubi (Chandra) Dutta vs 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 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.'

12. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission dated 29.04.2010 does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby, dismissed with no order as to cost.

13. Coming to the appeal the State Commission has convicted and sentenced the appellant/ opposite party for non-compliance of its interim order under section 27 of the Consumer Protection Act, 1986. It may be noted that the order has been subsequently complied with and the subject vehicle has been delivered to the complainant. Learned counsel for the appellant has contended that there is no purpose of maintaining the conviction of appellant as the complaint itself has been dismissed by the State Commission while allowing the appeal. It is further contended that the impugned order is not sustainable because the State Commission has convicted and sentenced the appellant for non-compliance of the order without giving him an opportunity to show cause.

14. On perusal of th

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e record, we find that the State Commission proceeded to convict and sentence the appellant without serving him with a show cause or explaining to him the gist of accusation against him. Thus the order of the State Commission cannot be sustained because the State Commission has proceeded to prosecute, convict and sentence the appellant without following the principles of natural justice. Otherwise also, conviction was recorded in respect of interim order passed during the pendency of the complaint. The complaint itself has been dismissed and the revision petition preferred by the complainant has also been dismissed by an order recorded herein before. 15. Under these circumstances, we find no justification for maintaining the order of conviction. Accordingly, the appeal is allowed and the impugned order of conviction and sentence of the appellant is set aside. 16. In view of the discussion above, the revision petition preferred by the petitioner/ complainant is dismissed and the appeal preferred by the opposite party is allowed accordingly.