RAJIV SHUKLA versus GOLD RUSH SALES AND SERVICES LTD. & ANR on 8 September 2022

[2022] 11 S.C.R. 213

RAJIV SHUKLA

v.

GOLD RUSH SALES AND SERVICES LTD. & ANR.

(Civil Appeal No. 5928 of 2022)

SEPTEMBER 8, 2022

[M. R. SHAH AND KRISHNA MURARI, JJ.]

Consumer Protection Act, 1986 – s.21 – Appellant booked anew car, paid the entire sale consideration – Respondent no.1-dealerdelivered a used car which was used as “Demo-Test Drive Vehicle”– National Commission setting aside the concurrent findingsrecorded by the District Forum and State Commission, modified theorders and directed compensation of Rs.1 lakh to be paid to theappellant – On appeal, held: Once the new car was booked andfull sale consideration was paid, a duty was cast upon the dealer todeliver a new car which is not defective – To deliver the defectivecar against the new car was not permissible – District Forum aswell as the State Commission on appreciation of evidence on recordconcurrently found that the car delivered was used car – Suchfindings of facts were not required to be interfered by the NationalCommission in exercise of the revisional jurisdiction – It acted beyondthe scope and ambit of the revisional jurisdiction conferred u/s.21(b)– Further, even as per the findings recorded by National Commission,the car which was delivered was a defective car and therefore evenitself directed that the compensation of Rs.1 lakh be paid to thecomplainant for the delivery of the defective car – Not to deliverthe new car despite the full sale consideration paid and/or to deliverthe defective car is unfair trade practice – District Forum and theState Commission justified in directing the respondent no.1 to replacethe delivered car and to deliver a new car – Impugned order setaside – Order passed by the District Forum confirmed by the StateCommission restored – Costs of Rs.1 lakh to be paid by respondentno.1.

Consumer Protection Act, 1986 – s.21 – Revisional jurisdiction– Powers of National Commission – Exercise of – Held: Powers ofthe National Commission are very limited – Only in a case where itis found that the State Commission has exercised its jurisdiction not

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Avested in it by law, or has failed to exercise the jurisdiction so vestedillegally or with material irregularity, the National Commission wouldbe justified in exercising the revisional jurisdiction – In exercisingof revisional jurisdiction the National Commission has nojurisdiction to interfere with the concurrent findings recorded bythe District Forum and the State Commission which are onBappreciation of evidence on record.CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5928of 2022.

From the Judgment and Order dated 04.01.2016 of the NationalCConsumer Disputes Redressal Commission, New Delhi in RevisionPetition No. 2082 of 2015.

Praveen Agrawal, Gautam Kumar Laha, Venkata KrishnaKunduru, Mrs. Kiran Mahato, Advs. for the Appellant.

Sidharth Bhatnagar, Sr. Adv., Abhinav Ramkrishna, Ms. AnjaliDChauhan, Ms. Samina Thakur, Mrs. Nandini Gore, Ms. Sonia Nigam,Aditya Sidhra, M/s Karanjawala & Co., Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

E1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 04.01.2016 passed by the National Disputes RedressalCommission, New Delhi (hereinafter referred to as the ‘NationalCommission’) in Revision Petition No.2082 of 2015 by which the NationalCommission in exercise of revisional jurisdiction has set aside theconcurrent findings recorded by the District Forum as well as the StateFCommission, the original complainant has preferred the present appeal.

2. That the appellant herein – original complainant purchased aTata Victa GX TC Car. He deposited the booking amount with the dealer– M/s. Gold Rush Sales and Services Ltd. – respondent no.1 hereinagainst which a receipt was issued. That thereafter the complainantGdeposited a further sum of Rs.5,30,000/- towards purchase amount ofthe said vehicle. That the booked car was not delivered to the complainanttill 26.05.2006. However, the delivery of the car was given to thecomplainant after a period of one year of deposit of the total amount,which as such was an old one and was of 2005 model and in fact was a H

used car. It was also having various other defects. That according to theoriginal complainant the car was old and it had already run upto 10,000kms. The car which was delivered was used by the dealer as “Demo-Test Drive Vehicle”. The original complainant lodged the FIR with thepolice. However, the matter could not be settled and therefore, thecomplainant filed a complaint before the District Forum with the followingprayers:

“i) pass the order to opposite party to replace aforesaid deliveredused car Tata Victa GX TC Model no. 2005, Chasis No.446370702-938757, Registration No. U.P. BS-8084 and deliverednew car/vehicle to the applicant/ consumer.

ii) pass an order for refund all such amounts with interest to whichthe opposite parties has taken to the applicant/consumer.

iii) pass an order against the opposite parties to pay five,compensation, damages, expenditure, claims and all such amountswith due interest to the applicant/ consumer accordingly ascalculated and claimed in the paras 24 of the application.

iv) to pass such order appropriate or direction which the Hon’bleCourt may deem just in the interest of justice and as well asaccording to the circumstances of the case”.

2.1 The District Forum allowed the complaint and directed therespondent no.1 – dealer to take back the delivered vehicle and in lieuthereof to deliver a new car to the complainant against the previouslydeposited amount. The District Forum also awarded a sum ofRs.5,000/- towards the mental agony besides a sum of Rs.2500/- towardslitigation costs. The District Forum specifically gave a finding that thedelivered car was used car and was being used as “Demo-Test DriveVehicle”.

2.2 The order passed by the District Forum came to be confirmedby the State Commission. However, by the impugned judgment and orderand while exercising the revisional jurisdiction, the National Commissionhas set aside the findings of facts recorded by the District Forum as wellas the State Commission that the car delivered was used car. However,having given the findings that the complainant got a defective car, theNational Commission modified the orders passed by the District Forumconfirmed by the State Commission and directed to pay compensation inthe sum of Rs.1 lakh to be paid to the complainant.

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A2.3 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the NCDRC - National Commission, the complainanthas preferred the present appeal.

3. Shri Praveen Agrawal, learned counsel appearing on behalf ofthe appellant – original complainant has vehemently submitted that theBNational Commission has materially erred in upsetting the findings offacts recorded by the District Forum and the State Commission that thecar delivered was a used car. It is submitted that on appreciation ofevidence on record, both, the District Forum as well as the StateCommission gave specific findings that the car delivered was used car.It is submitted that therefore the findings of facts recorded by the DistrictCForum and the State Commission which were on appreciation of entireevidence could not have been set aside and/or interfered with by theNational Commission in exercise of the revisional jurisdiction. It issubmitted that therefore the National Commission while interfering withthe findings of facts recorded by the District Forum and the StateDCommission has exercised the powers beyond the scope and ambit ofrevisional jurisdiction under Section 21 of the Consumer Protection Act,1986.

3.1 It is further submitted by learned counsel for the appellantthat even otherwise the findings recorded by the National CommissionEon the delivered car is contrary to the findings on record. It is submittedthat considering the test drive/demo slip of the delivered car havingChassis No. 939353, it was established and proved that the deliveredcar was used as demo/test drive car.

3.2 It is submitted that when the complainant paid the full saleFconsideration for a new car, the duty was cast upon the dealer to supplythe new car which was booked. It is submitted that non-supply of thenew car which was booked even on payment of the sale considerationwould tantamount to dishonesty and unfair trade practice. It is submittedthat therefore the District Forum and the State Commission were justifiedin directing the respondent no.1 – dealer to deliver a new car against theGpreviously deposited amount.

3.3 Making the above submissions, it is prayed to allow the presentappeal and restore the judgment and order passed by the District Forumand confirmed by the State Commission.

4. Mr. Abhinav Ramkrishna, learned counsel appearing on behalfof respondent no.1 has supported the impugned judgment and orderpassed by the National Commission.

4.1 It is submitted that the cogent reasons have been given by theNational Commission interfering with the findings recorded by the DistrictForum and the State Commission that the car delivered was a used car.

4.2 It is submitted that on reappreciation of the entire evidence onrecord, the National Commission has rightly observed that no evidencehas been led to show that the car delivered was an old car. It is submittedthat therefore no case is made out to interfere with the impugnedjudgment and order passed by the National Commission.

5. Shri Sidharth Bhatnagar, learned Senior Advocate appearingon behalf of the Tata Motors Limited has submitted that as suchRespondent no.2 – Tata Motors Limited is a proforma respondent as noorder has been passed against the respondent no.2 – Tata Motors Limited.

6. We have heard learned counsel for the respective parties atlength.

7. At the outset, it is required to be noted that the appellant herein- original complainant booked a new car and as such paid the entire saleconsideration. Therefore, when the complainant – customer booked anew car and paid the sale consideration of a new car, the dealer wassupposed to and/or bound to deliver the new car. Instead, the respondentno.1 – dealer delivered the used car which was used as “Demo-TestDrive Vehicle”. Even as per the findings recorded by the NationalCommission the car which was delivered was a defective car. Even todeliver the defective car against the new car was also not permissible.Not to deliver the new car despite the full sale consideration paid and/orto deliver the defective car can be said to be unfair trade practice.Therefore, as such the District Forum and the State Commission wereabsolutely justified in directing the respondent no.1 – dealer to replacethe delivered car and to deliver a new car.

7.1 At this stage, it is required to be noted that on appreciation ofevidence on record the District Forum as well as the State Commissionconcurrently found that the car delivered was used car. Such findings offacts recorded by the District Forum and the State Commission werenot required to be interfered by the National Commission in exercise of AB

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Athe revisional jurisdiction. It is required to be noted that while passing theimpugned judgment and order the National Commission was exercisingthe revisional jurisdiction vested under Section 21 of the ConsumerProtection Act, 1986. As per Section 21(b) the National Commissionshall have jurisdiction to call for the records and pass appropriate ordersin any consumer dispute which is pending before or has been decided byBany State Commission where it appears to the National Commissionthat such State Commission has exercised its jurisdiction not vested in itby law, or has failed to exercise a jurisdiction so vested, or has acted inthe exercise of its jurisdiction illegally or with material irregularity. Thus,the powers of the National Commission are very limited. Only in a caseCwhere it is found that the State Commission has exercised its jurisdictionnot vested in it by law, or has failed to exercise the jurisdiction so vestedillegally or with material irregularity, the National Commission would bejustified in exercising the revisional jurisdiction. In exercising of revisionaljurisdiction the National Commission has no jurisdiction to interfere withthe concurrent findings recorded by the District Forum and the StateDCommission which are on appreciation of evidence on record. Therefore,while passing the impugned judgment and order the National Commissionhas acted beyond the scope and ambit of the revisional jurisdictionconferred under Section 21(b) of the Consumer Protection Act.

7.2. As observed hereinabove, both, the District Forum as well asEthe State Commission specifically gave the findings that the vehicledelivered was used car which was used as “Demo-Test Drive Vehicle”.As observed hereinabove even the National Commission has alsoobserved and held that the vehicle delivered was defective and thereforeeven the National Commission has directed that the compensation in theFsum of Rs.1 lakh be paid to the complainant for the delivery of thedefective car. Non delivery of a new car can be said to be an unfairtrade practice and even it can be said to be dishonesty on the part of thedealer and against the morality and ethics. As observed hereinabove,once the new car was booked and the full sale consideration was paid, a

duty was cast upon the dealer to deliver a new car which is not defectiveGtherefore the District Forum as well as the State Commission werejustified in directing the dealer to give delivery of a new car.

8. In view of the above and for the reason stated above, theimpugned judgment and order dated 04.01.2016 passed by the NationalCommission in Revision Petition No.2082 of 2015 is hereby quashed and set aside. The judgment and order passed by the District Forumdated 29.04.2011 passed in Consumer Case No.397 of 2007 confirmedby the State Commission vide judgment and order dated 19.09.2014 inAppeal No.910 of 2011 are hereby restored. The Respondent no.1 ishereby directed to comply with the judgment and order passed by theDistrict Forum. The present appeal is accordingly allowed to the aforesaidextent with costs which is quantified at Rs.1 lakh to be deposited byRespondent No.1 within a period of six weeks from today with theRegistry of this Court. On such deposit Rs.50,000/- be paid to the appellantherein towards the costs/litigation cost etc. and Rs.50,000/- be transferredto the Mediation and Conciliation Project Committee (MCPC), SupremeCourt of India, New Delhi.

Divya Pandey

Appeal allowed.

(Assisted by : Roopanshi Virang, LCRA)

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