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Judgment
Present Revision Petitions have been filed by the Petitioner/ Complainant against the impugned order dated 09.03.2017, passed by Uttar Pradesh State Consumer Disputes Redressal Commission at Lucknow (for short, ''State Commission'') in First Appeal Nos.2829 & 2830 of 2013.
Brief facts of the case are that Petitioner/Complainant purchased a Tata Indigo Car Registration No. UP83 W9172 by at a cost of Rs.6,04,541/- from M/s. Siyaram Motors-Respondent No.1/Opposite Party No.1. He did not avail of the first and second free service but on 24.12.2012, the Petitioner sent the vehicle for third free service after the car had run 10,500 K.Ms. The Petitioner stated that the Respondent No.1 had stated that engine of the car had seized, therefore, it cannot be replaced under the warranty, as the first and second service of the car had not been done. Though a computer generated report was given by the Respondent No.1 to the Petitioner on 27.12.2012, informing that the car had run 13269 K.Ms however, as per the Petitioner, at the time of giving the car to Respondent No.1 the car had run 10,500 K.Ms. The balance mileage was added when the car was lying in the possession of Respondent No.1.Therefore, the responsibility for seizing of engine lies on the Respondents. The Petitioner issued a notice to the Respondents for returning the car after replacement of seized engine by a new engine, but no reply was received. Hence, the Petitioner/Complainant had filed a consumer Complainant before the District Forum on 17.02.2013.
The Respondent No.2-Opposite Parties No.3 i.e. Tata Motors Ltd. did not file their reply/objections before the District Forum, therefore, the matter was proceeded ex-parte against them.
As per the Respondent No.1 the vehicle had run upto 13,269 K.M.s till 24.12.2012. The first and second free service of the car had not been got done by the Petitioner. A Service Book and Warranty Card were provided along with the car and according to terms and conditions, the warranty of the car stood terminated as the first and second service of the vehicle had not been got done and also for not maintaining the vehicle in proper condition. Therefore, the Respondent No. 1 and the Car Manufacturing Company could not accept the responsibility to replace the seized engine of the car under warranty and without payment.
The District Consumer Disputes Redressal Forum-II, Agra (for short, ''District Forum'') while allowing the Consumer Complaint No. 17 of 2003 vide its order dated 13.11.2013 passed the following order;
" The complaint of the Complainant is accepted. The Respondents are ordered that Car No.UP 83 W 9172 be returned to the Respondent after replacement of the seized engine and removal of all other defects, bringing it to perfect running condition, and after providing third free service. The Respondents are also ordered that from 24.12.2012 till the date of return of the vehicle, the Appellants should pay a compensation of Rs.500 per day along with interest @ 6% on daily basis. Besides, he should also pay a sum of Rs.3,000/- towards mental torture and Rs.2,000/- towards litigation charges within one month.
It is also ordered that the Respondent will be free to recover these amounts jointly or separately ."
Being aggrieved by the order of the District Forum, Respondents No.1-Siyaram Motors Private Limited has filed First Appeal No.2829 of 2013, whereas Respondent No.2/Opposite Party N.3-Tata Motors Limited, who is manufacturer of car, has filed a separate First Appeal No. 2850 of 2013.
The State Commission while partly allowing both Appeal Nos. 2829 of 2013 and 2850 of 2013 vide their order dated 09.03.2017, observed as under;
" The learned counsel for the Appellants also submitted that the order for payment of compensation payable @ Rs.500/- per day is unwarranted. It is submitted that every person maintains a vehicle for his convenience. The seizure of the engine has occurred for no fault on the part of the Respondent but the Appellants have not removed and replaced the seized engine of his car. Therefore, the Respondent had to file the Consumer Complaint before the District Forum. Certainly, due to the non-availability of the vehicle, the Respondent had to suffer inconvenience as well as physical and mental torture. Under these circumstances, the order for payment of compensation to the Respondent is legal. However, in our view the amount of Rs.500/- per day ordered for payment to the Respondent is on the higher side. In our view instead of payment @ Rs.500/- per day, compensation of Rs.25,000/- only to the Respondent will meet the ends of justice. The impugned order is, therefore, liable for amendment. The appeal is accepted separately.
O R D E R
The appeal is accepted partly. The order dated 13.11.2013, passed in the Consumer Complaint No. 17/2003 by the District Forum-II is amended only to the extent that the Appellants are ordered to pay a compensation of Rs.25,000/- only instead of Rs.500/- per day towards physical and mental torture and Rs.3,000/- for mental torture. The Respondent shall be entitled to claim simple interest @ 6% per annum from the date of filing of the Consumer Complaint till the date of full payment. The remaining portion of the order of the District Forum-II is upheld. The parties shall bear their own costs.
A certified copy of this order be kept along with Appeal No.2850 of 2013 . "
Hence, this Revision Petition.
I have heard the learned counsel for the Petitioner. He has contended that the State Commission has failed to appreciate that Rs.500/- per day being compensation, which had been awarded by the District Forum in favour of the Petitioner is neither unreasonable nor excessive. The State Commission has passed a non-speaking order while reducing the compensation amount by partly allowing the appeals and setting aside the order of the District Forum with regard to the payment of compensation of Rs.500/- per day to the Petitioner and awarding the lump-sum amount of Rs.25,000/- towards compensation to the Petitioner/Complainant for his personal inconvenience. The learned Counsel for the Petitioner further contended that the car of the Petitioner had become immobile and unusable since 24.12.2012 and after the engine had seized now the car is only a pile of junk and is of no use to him at this stage. The counsel for the Petitioner, therefore, prayed that relief given by the District Forum deserves to be modified to the extent that Respondents be directed to refund the total costs of the car of Rs.6,04,541/-along with additional minimum compensation of Rs.500/- per day.
The learned counsel for the Petitioner has placed on record Audited Accounts of the Partnership Firm in which as per the learned counsel for the Petitioner the travelling expenses of the firm have been certified by the Chartered Accountant. However, the travelling and conveyance allowances accounted for in the account of the firm does not prove that the same were incurred only on travel by the petitioner on journeys he would had normally undertaken in his Tata Indigo Car. The travelling and conveyance allowances accounted in the account of any company also include the travelling and conveyance expenses spent on the tours/journeys outside the city and also expenditure in respect of travelling and conveyance of staff members of the company. The learned counsel for the Petitioner is unable to show any specific documentary evidence with regard to the actual amount spent by the Petitioner/Complainant on travelling and conveyance, as he states that taxi and auto drivers do not give any receipts against the payment of fare.
I am not convinced with the submissions made by the learned counsel for the Petitioner as there is nothing on record to substantiate or to support his arguments. Hence, I am of the view that the State Commission has rightly granted a lump-sum compensation of Rs.25,000/- to the Petitioner/Complainant in the absence of the any cogent documentary evidence regarding journeys undertaken by Petitioner/ Complainant-Parsa Ram by public transport in the absence of his own car. There is no specific documentary evidence on record to establish that the expenditure incurred on travelling and conveyance by the Petitioner after the period of December, 2012, when Tata Indigo Car was not available with him.
Moreover, the learned counsel for the Petitioner today is making a new case by praying for the refund of the total cost of the Car with interest as the Car of the Petitioner was lying in the workshop of the Respondent No. 1 since 2012. The Petitioner has not filed any execution application before the District Forum to get its order executed to get the car repaired from the Respondent No.1 as per order of the District Forum. As per his own Complaint, the Petitioner had only asked for the repair of the vehicle within warranty period without any cost. The order of the District Forum was passed on 13.11.2013, which has also been upheld by the State Commission vide their impugned order dated 09.03.2017 directing the Respondents to return the Car after replacing the seized engine and after removing all other defects after providing third free service.
It is settled law that the Petitioner/Complainant cannot change the nature of the Complaint at the revisional stage particularly when the Petitioner has not assailed the order of the District Forum before the State Commission and the Order of the District Forum became final qua the Petitioner.
In view of the above discussions, I am of the view that no jurisdictional or legal error has been shown in the impugned order to call for interference in the exercise of powers under Section 21(b) of the Consumer Protection Act, 1986 and does not call for any interference nor doesit suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity in partly allowing the Appeal preferred by the Respondents. Thus, the Revision Petition being devoid of any merits is hereby dismissed. However, the Petitioner/Complainant may file the Execution Application before the District Forum concerned to get the order of the District Forum executed.
No order as to cost.