SUBHASH vs Gautam Automobiles Pvt. Ltd.

PETITIONER /Complainant has filed the present Revision Petition challenging impugned order dated 10.12.2012, passed by State Consumer Disputes Redressal Commission, Haryana, Panchkula in (First Appeal No. 1334 of 2012) vide which appeal of the petitioner challenging order dated 25.09.2012, passed by the District Consumer Disputes Redressal Forum, Gurgaon(for short, ''District Forum'') was dismissed.

BRIEF facts are that petitioner had purchased Ashok Leyland Ecomet vehicle from Respondent No. 1/ Opposite Party No. 1 on 07.01.2007 for a sum of Rs.7,96,000/ -. As per case of the petitioner, he had purchased the vehicle ''Model of 2007'' but respondent no.1 delivered him the vehicle, having ''Model of 2005''. It is alleged that at the time of delivery the vehicle had rust, old tyres with cracks, its battery was dead and could not work property on road as sometimes its gearbox or engine or gas kit, brakes clutch plate etc. became out of order, time and again despite their repair from them. The petitioner asked the respondents to replace the vehicle but despite assurance, respondents failed to replace the same. By way of filing the complaint, the grievances of petitioner is that, respondents had fraudulently delivered him an old and defective vehicle. Hence, alleging deficiency in service on the part of respondents, petitioner invoked the jurisdiction of the District Forum. Respondents contested the complaint. In their written statement they took the plea that petitioner was delivered the vehicle having ''Model 2007''.Even the registration certificate issued by the registering authority shows that the Model of the vehicle was of year 2007. The vehicle in question underwent strict quality control test before dispatch to the dealer, who also carried out pre -delivery inspection of vehicle delivered to the petitioner. There was no manufacturing defect in the vehicle and it was delivered to the petitioner in perfect road worthy condition by the respondent no.1. The petitioner brought the vehicle for routine maintenance purpose which was done from time to time. Denying any kind of deficiency respondents prayed for dismissal of complaint.

DISTRICT Forum, on appraisal of the pleadings of the parties and the evidence produced before it, found no merit and as such dismissed the Complaint.

BEING aggrieved, petitioner filed an appeal before the State Commission, which was dismissed in limine. Hence, the present petition.

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

IT has been contended by the learned counsel that petitioner had examined one Mr.Sanjay Kumar Verma licensed Surveyor and Loss Assessor who furnished his inspection report of the vehicle and opined that it was manufactured in 11/2005 which he had proved from aggregate numbers found on the vehicle. He also opined that the engine was overhauled and had already crossed one year of manufactured parts. His report could not be disputed unless cogent material and alternative assessment was put forward by the respondents. The District Forum, in its order dated 25.09.2012 has held; Admittedly the complainant has purchased Ashok Leyland Ecomet 1112 - 4200 MM WB Chassis bearing Engine No. JDH 350597, Chassis No.JDR 141989 manufactured by OP -2 from Gautam Automobiles Pvt. Ltd, the authorized dealer of OP -1 on 15.1.05 (C -I) showing at Column No. 8 of Sale Certificate Form No. 21 Month and Year of manufacturer as 2007. Similarly, Registering Authority cum Secretary, RTA, Rewari on registering the vehicle on 24.01.2007 with Regd. No.HR -47 -A/4679 in the name of Subhash S/o Sh.Bahadur Singh mentioned the Month and Year of the manufacturing as 2007 with same Chassis No.JRD 141989, Engine No.bJDH 350597.Both the documents are authentic as the registration of the vehicle is being done by the Registering Authority under the provisions of Motor Vehicle Act after due verification of Month and Year of manufacturer as well as of Chassis Number and Engine Number of the vehicle concerned. Thus, the Registration Certificate has presumption of truth attached to it but on the other hand the complainant has alleged that his vehicle is of Model 2005. In this regard petitioner got the vehicle inspected through this Forum by appointing Surveyor Sh. Sanjay Kumar Verma who after examining the vehicle in dispute has filed his Report Ex.CW -1/2 along with his affidavit Ex. CW -1. He was examined as CW -1 by this Forum and proved above two documents but in his examination -in -chief he has not explained his qualification/ technical qualification regarding examination of a motor vehicle except that he is Surveyor and Loss assessor. Similarly, in his affidavit also he has not disclosed his qualification nor in his Report he has explained his qualification or experience. In his affidavit and report he has stated that he has minutely checked the vehicle and found that it was manufactured in the year 2005 as all the aggregates numbers punched on the vehicle indicated that the said vehicle was manufactured in 2005. However, during cross examination by the OP he has stated that he has passed ''Polytechnic'' from Polytechnic Jhajjar in the field of Mechanical Engineering but without describing his trade which Diploma or Decree he has obtained in which field. He has also admitted that he has not brought any document to show that he is Mechanical Engineer though explained that he has obtained Licence for Surveyor and Loss Assessor from the Ministry of Finance. He has stated that he has examined the vehicle on 02.01.2009 but in his affidavit Ex.CW -1/ 1 which is part of his examination in chief he has not disclosed on which date and at what place he has examined the vehicle in dispute. On the other hand, during his cross -examination he has further stated that he has taken photographs of the vehicle CW -1/3 to Ex.CW -1/10 on 27.12.2008. However, in cross -examination he has admitted that he has not obtained any Diploma or Degree in Automobile Engineering which clinches the matter that he is not expert witness. Thus, this witness is neither an expert witness to examine the vehicle nor he has proved when he has inspected the vehicle as photographs according to him were taken on 27.12.2008 but in the same breath he has stated that he has checked the vehicle on 02.01.2009 which is contradictory to each other. Thus, his statement and report cannot be believed. Consequently, as against the authenticity of Sale Certificate as well as Registration Certificate issued by the Registering Authority the report of Surveyor is not acceptable that the vehicle has a manufacturing year of 2005 instead of 2007.

THE State Commission while dismissing the appeal, in its impugned order observed; From the perusal of documents available on record we are of the view that there is nothing on the record to prove that the opposite parties have supplied the old and defective vehicle to the complainant. The Registration Certificate of the vehicle clearly shows that vehicle in question having model 2007. Sale certificate Form No. 21 also indicates the month and year of manufacturing of the vehicle as 2007. Even otherwise there is nothing on record to prove that the vehicle in question was having any manufacturing defect. Thus, the plea of the complainant that the vehicle in question was defective is not sustainable for want of expert evidence. The District Forum after considering each and every aspect of the case has rightly dismissed the complaint.

No case for interference with the impugned order is made out.

Finding no merit in this appeal, it is dismissed in limine.

UNDER section 21(b) of the Consumer Protection Act,1986(for short ''Act''),this Commission can interfere with the order of the State Commission where such State Commission has exercised 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. 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.

IT is an admitted case of the petitioner that he had purchased the vehicle in question on 7.1.2007. The Consumer Complaint was filed only on 30.10.2007 before the District Forum. There is no explanation at all as to how after using the vehicle for a period of about 10 months, the petitioner all of a sudden realised that the vehicle is of the year 2005.

FURTHER , petitioner had taken contradictory plea in its Complaint, stating that at the time of delivery of vehicle to him by respondent no.1, the condition of the vehicle was not good and rust appeared on the body of the vehicle and was having old tyres. Thus, as per petitioner''s own case at the time of delivery of the vehicle, it was not in a good condition. Hence, we fail to understand then why petitioner took the delivery of such a vehicle. There is no explanation at all in this regard. It is well settled that persons can tell lie, but not the documents. In the present case, as per the authenticated document, that is, the Registration Certificate issued by the statutory authority, the year of the Model of the Vehicle in question is of ''2007''. There could be no purpose for the statutory authority to issue a false and wrong document. Under these circumstances and keeping in view the fact, that there are concurrent findings of facts given by the fora below, no jurisdictional or legal error has been shown to call for interference in the exercise of power under section 21(b) of the Act. Both fora have given cogent reasons in their orders which do not call for any interference nor do they suffer from any infirmity or revisional exercise of jurisdiction.

ACCORDINGLY , present revision petition stand dismissed with cost of Rs.10,000/ -(Rupees Ten Thousand only).

PETITIONER is directed to deposit the cost 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 cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.

LIST on 12.09.2014 for compliance.