Raj Auto Financers vs Atmaram Sursingh Jadhav

PETITIONER /Opposite Party No.2 being aggrieved by impugned order dated 22.9.2011 passed by Maharashtra State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad (short, "State Commission) has filed this revision petition.

BRIEF facts are that Respondent No.1/Complainant purchased Tractor No. MH -19 -P -4985 for which he obtained a loan of Rs.3,60,000/ -. Respondent No.1 paid down payment of Rs.1,60,000/ -. Loan was to be repaid in 36 EMI of Rs.16,000/ -. Respondent No.2 issued the bill of purchase on 25.7.2007 but delivery was given on 23.9.2007 i.e. after receipt of loan amount by the Bank. Due to late delivery, respondent No.1 could not use the tractor for earning his livelihood and therefore, he was to pay installment without earning anything from the tractor. On 26.11.2007, respondent No.1 had gone to Chalisgaon and there some unknown persons seized the vehicle. It is alleged that though he was not a defaulter, but his vehicle seized without prior notice. Immediately after seizure of the vehicle respondent No.1, approached petitioner and deposited Rs.32,000/ - with it. Accordingly, petitioner wrote a letter to Respondent No.3/O.P.No.3 and asked it to return the tractor. Even, then tractor was not returned. Therefore, respondent No.1 approached the District Forum. It is the defense of the petitioner as well as of respondent No.3 that, respondent No.1 was a defaulter and therefore, his vehicle was seized. After seizure of the vehicle, respondent No.1 deposited a sum of Rs.32,000/ -. Immediately, thereafter, he requested for refund of the said amount as he was in urgent need of the money. Therefore, a sum of Rs.32,000/ - was refunded back to respondent No.1 again. Accordingly, his vehicle was not released. and hence, there is no deficiency in service on their part.

DISTRICT Forum, vide order dated 22.1.2009, partly allowed the complaint and passed the following directions ; "(A) The complaint petition of the complainant is being partially allowed. (B) The Defendant No.1 and 2 are being directed that, they having accepted the sum of Rs.32,000/ - on account of the outstanding loan installments till date from the complainant they should immediately hand over the possession of the above mentioned tractor with documents to the complainant under the said order and having accepted the above mentioned sum of money. (C) The Defendant No.1 and 2 are hereby being directed that, they having prepared a schedule of the payment of the remaining installments give the same to the complainant so that it will be convenient for the complainant to pay the loan installments and the loan installment amount will not have to be paid lump sum and he would not be burdened with a very large sum. (D) The defendant No.1 and 2 are hereby being directed that, if they fail to hand over the possession of the said tractor to the complainant within seven days of the receipt of the copy of the said order then the Defendant No.1 and 2 will have to pay the complainant jointly and severally a sum of Rs.20,000/ - per month from the date of seizure of the said tractor till the date of handing over the possession of the said tractor to the complainant. Also the Defendant No.1 and 2 would be liable to pay the complainant the depreciation fee from the date of seizure of the tractor till the handing over the possession of the tractor. (E) The Defendant No.3 unnecessarily gave the possession of the tractor to the complainant 2 months late which resulted in turning the complainant defaulter and he suffered financial loss hence, in compensation of the said loss the Defendant No.3 is required to pay a sum of Rs.25,000/ - to the complainant. (F) The Defendant No.1 and 2 are hereby being directed that, they should give a sum of Rs.5,000/ - to the complainant as the cost of submitting the complaint within one month since the day of receipt of the said order. "

BEING aggrieved by order of the District Forum, petitioner and respondent No.3 filed an appeal before the State Commission which was dismissed vide the impugned order. Now, petitioner alone has challenged the impugned order by way of the present revision petition.

WE have heard the learned counsel for the petitioner and gone through the record.

IT has been contended by learned counsel for the petitioner that respondent No.1 having paid the sum of Rs.32,000/ - to the petitioner, requested for return of that very amount since he was in urgent need. Accordingly, petitioner returned back Rs.32,000/ - and obtained signatures of the respondent No.1 on the back of the receipt. Under these circumstances, respondent No.1 is yet to repay Rs.32,000/ -. The State Commission did not consider this fact at all and as such impugned order is liable to be set aside. District Forum in its order has held ; "As mentioned above even after the complainant had paid the outstanding installments he had not received the possession of his vehicle and therefore, in the opinion of the Forum the defendant has been deficient in the performance of his service and it cannot be said that the complainant has suffered mental, physical and financial agony due to that. "

THE State Commission, while dismissing the appeal in its order observed; "It is an admitted fact that complainant purchased the tractor with the help of finance company. It is also an admitted fact that complainant was regularly paying the installments. As his vehicle was seized unauthorizedly complainant immediately approached to finance company and deposited Rs.32,000/ -. The contention of finance company that Rs.32,000/ - were returned back to the complainant cannot be believed as receipt issued in respect of said payment was not demanded back by the appellant. In our view, non -issuance of notice for default and non -issuance of notice before seizure is contrary to law. Appellants are under obligation to serve the notice before taking any action against the defaulter. This does not seem to be done in the present case. District Forum though held that Rs.32,000/ - were deposited by the complainant again directed appellant to accept Rs.32,000/ -. In our view, there is some confusion with the District Forum while passing the clause -1 of the operative order. In our view, complainant deposited Rs.32,000/ -, therefore, there is no need of payment of amount. Complainant need not to pay Rs.32,000/ -. Hence, appeal is dismissed. No order to cost. "

IT does not appeal to common sense that when a person had already paid the sum of Rs.32,000/ - to other person, then why again at the very next moment he will demand the money back. The story put forward by the petitioner with regard to respondent No.1 having received back Rs.32,000/ - immediately after having made the payment, appears to be a cock and bull story and is not believable at all. It is well settled that under Section 21 (b) of the Consumer Protection Act, 1986 (for short ''Act ''), the scope of revisional jurisdiction is very limited. 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. "

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. Since, State Commission has given well -reasoned order which does not call for any interference nor it suffers from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby dismissed with cost of Rs.10,000/ - (Rupees Ten Thousand only).

PETITIONER is directed to deposit the cost of Rs.10,000/ -, by way of demand draft in the name of ''Consumer Legal Aid Account '' of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization. Pending application, also stand dismissed.

LIST on 6.12.2013 for compliance.