Rajiv Shukla vs Gold Rush Sales And Services Ltd .

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5928 of 2022

Rajiv Shukla … Appellant

Versus

Gold Rush Sales and Services Ltd. & Anr. … Respondents

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 04.01.2016 passed by the National

Disputes Redressal Commission, New Delhi (hereinafter

Signature Not Verified Digitally signed by referred to as the ‘National Commission’) in Revision Petition SNEHA Date: 2022.09.08 16:35:49 IST

No.2082 of 2015 by which the National Commission in Reason:

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exercise of revisional jurisdiction has set aside the concurrent

findings recorded by the District Forum as well as the State

Commission, the original complainant has preferred the

present appeal.

2. That the appellant herein – original complainant

purchased a Tata Victa GX TC Car. He deposited the booking

amount with the dealer – M/s. Gold Rush Sales and Services

Ltd. – respondent no.1 herein against which a receipt was

issued. That thereafter the complainant deposited a further

sum of Rs.5,30,000/­ towards purchase amount of the said

vehicle. That the booked car was not delivered to the

complainant till 26.05.2006. However, the delivery of the car

was given to the complainant 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 used car. It was also

having various other defects. That according to the original

complainant the car was old and it had already run upto

10,000 kms. The car which was delivered was used by the

dealer as “Demo­Test Drive Vehicle”. The original complainant 3

lodged the FIR with the police. However, the matter could not

be settled and therefore, the complainant filed a complaint

before the District Forum with the following prayers:

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

ii) pass an order for refund all such amounts with interest to which the 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 amounts with due interest to the applicant/ consumer accordingly as calculated and claimed in the paras 24 of the application.

iv) to pass such order appropriate or direction which the Hon'ble Court may deem just in the interest of justice and as well as according to the circumstances of the case".

2.1 The District Forum allowed the complaint and directed

the respondent no.1 – dealer to take back the delivered vehicle

and in lieu thereof to deliver a new car to the complainant

against the previously deposited amount. The District Forum

also awarded a sum of Rs.5,000/­ towards the mental agony

besides a sum of Rs.2500/­ towards litigation costs. The

District Forum specifically gave a finding that the delivered car 4

was used car and was being used as “Demo­Test Drive

Vehicle”.

2.2 The order passed by the District Forum came to be

confirmed by the State Commission. However, by the

impugned judgment and order and while exercising the

revisional jurisdiction, the National Commission has set aside

the findings of facts recorded by the District Forum as well as

the State Commission that the car delivered was used car.

However, having given the findings that the complainant got a

defective car, the National Commission modified the orders

passed by the District Forum confirmed by the State

Commission and directed to pay compensation in the sum of

Rs.1 lakh to be paid to the complainant.

2.3 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the NCDRC ­ National

Commission, the complainant has preferred the present

appeal.

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3. Shri Praveen Agrawal, learned counsel appearing on

behalf of the appellant – original complainant has vehemently

submitted that the National Commission has materially erred

in upsetting the findings of facts recorded by the District

Forum and the State Commission that the car delivered was a

used car. It is submitted that on appreciation of evidence on

record, both, the District Forum as well as the State

Commission gave specific findings that the car delivered was

used car. It is submitted that therefore the findings of facts

recorded by the District Forum and the State Commission

which were on appreciation of entire evidence could not have

been set aside and/or interfered with by the National

Commission in exercise of the revisional jurisdiction. It is

submitted that therefore the National Commission while

interfering with the findings of facts recorded by the District

Forum and the State Commission has exercised the powers

beyond the scope and ambit of revisional jurisdiction under

Section 21 of the Consumer Protection Act, 1986. 6

3.1 It is further submitted by learned counsel for the

appellant that even otherwise the findings recorded by the

National Commission on the delivered car is contrary to the

findings on record. It is submitted that considering the test

drive/demo slip of the delivered car having Chassis No.

939353, it was established and proved that the delivered car

was used as demo/test drive car.

3.2 It is submitted that when the complainant paid the full

sale consideration for a new car, the duty was cast upon the

dealer to supply the new car which was booked. It is

submitted that non­supply of the new car which was booked

even on payment of the sale consideration would tantamount

to dishonesty and unfair trade practice. It is submitted that

therefore the District Forum and the State Commission were

justified in directing the respondent no.1 – dealer to deliver a

new car against the previously deposited amount. 7

3.3 Making the above submissions, it is prayed to allow the

present appeal and restore the judgment and order passed by

the District Forum and confirmed by the State Commission.

4. Mr. Abhinav Ramkrishna, learned counsel appearing on

behalf of respondent no.1 has supported the impugned

judgment and order passed by the National Commission.

4.1 It is submitted that the cogent reasons have been given

by the National Commission interfering with the findings

recorded by the District Forum and the State Commission that

the car delivered was a used car.

4.2 It is submitted that on reappreciation of the entire

evidence on record, the National Commission has rightly

observed that no evidence has been led to show that the car

delivered was an old car. It is submitted that therefore no

case is made out to interfere with the impugned judgment and

order passed by the National Commission.

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5. Shri Sidharth Bhatnagar, learned Senior Advocate

appearing on behalf of the Tata Motors Limited has submitted

that as such Respondent no.2 – Tata Motors Limited is a

proforma respondent as no order has been passed against the

respondent no.2 – Tata Motors Limited.

6. We have heard learned counsel for the respective parties

at length.

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 sale consideration. Therefore, when the

complainant – customer booked a new car and paid the sale

consideration of a new car, the dealer was supposed to and/or

bound to deliver the new car. Instead, the respondent no.1 –

dealer delivered the used car which was used as “Demo­Test

Drive Vehicle”. Even as per the findings recorded by the

National Commission the car which was delivered was a

defective car. Even to deliver the defective car against the new

car was also not permissible. Not to deliver the new car 9

despite the full sale consideration paid and/or to deliver the

defective car can be said to be unfair trade practice.

Therefore, as such the District Forum and the State

Commission were absolutely justified in directing the

respondent no.1 – dealer to replace the delivered car and to

deliver a new car.

7.1 At this stage, it is required to be noted that on

appreciation of evidence on record the District Forum as well

as the State Commission concurrently found that the car

delivered was used car. Such findings of facts recorded by the

District Forum and the State Commission were not required to

be interfered by the National Commission in exercise of the

revisional jurisdiction. It is required to be noted that while

passing the impugned judgment and order the National

Commission was exercising the revisional jurisdiction vested

under Section 21 of the Consumer Protection Act, 1986. As

per Section 21(b) the National Commission shall have

jurisdiction to call for the records and pass appropriate orders 10

in any consumer dispute which is pending before or has been

decided by any State Commission where it appears to the

National Commission that such State Commission has

exercised its jurisdiction not vested in it by law, or has failed

to exercise a jurisdiction so vested, or has acted in the exercise

of its jurisdiction illegally or with material irregularity. Thus,

the powers of the National Commission are very limited. Only

in a case where it is found that the State Commission has

exercised its jurisdiction not vested in it by law, or has failed

to exercise the jurisdiction so vested illegally or with material

irregularity, the National Commission would be justified in

exercising the revisional jurisdiction. In exercising of

revisional jurisdiction the National Commission has no

jurisdiction to interfere with the concurrent findings recorded

by the District Forum and the State Commission which are on

appreciation of evidence on record. Therefore, while passing

the impugned judgment and order the National Commission

has acted beyond the scope and ambit of the revisional 11

jurisdiction conferred under Section 21(b) of the Consumer

Protection Act.

7.2. As observed hereinabove, both, the District Forum as

well as the State Commission specifically gave the findings

that the vehicle delivered was used car which was used as

“Demo­Test Drive Vehicle”. As observed hereinabove even the

National Commission has also observed and held that the

vehicle delivered was defective and therefore even the National

Commission has directed that the compensation in the sum of

Rs.1 lakh be paid to the complainant for the delivery of the

defective car. Non delivery of a new car can be said to be an

unfair trade practice and even it can be said to be dishonesty

on the part of the dealer 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 defective therefore the

District Forum as well as the State Commission were justified

in directing the dealer to give delivery of a new car. 12

8. In view of the above and for the reason stated above, the

impugned judgment and order dated 04.01.2016 passed by

the National Commission in Revision Petition No.2082 of 2015

is hereby quashed and set aside. The judgment and order

passed by the District Forum dated 29.04.2011 passed in

Consumer Case No.397 of 2007 confirmed by the State

Commission vide judgment and order dated 19.09.2014 in

Appeal No.910 of 2011 are hereby restored. The Respondent

no.1 is hereby directed to comply with the judgment and order

passed by the District Forum. The present appeal is

accordingly allowed to the aforesaid extent with costs which is

quantified at Rs.1 lakh to be deposited by Respondent No.1

within a period of six weeks from today with the Registry of

this Court. On such deposit Rs.50,000/­ be paid to the

appellant herein towards the costs/litigation cost etc. and

Rs.50,000/­ be transferred to the Mediation and Conciliation 13

Project Committee (MCPC), Supreme Court of India, New

Delhi.

…………………………………J. (M. R. SHAH)

…………………………………J. (KRISHNA MURARI)

New Delhi, September 8, 2022.