Commercial Toyota And Anr vs Sh. Mukesh Gautam And Ors
2012 Latest Caselaw 3543 Del

 28.

 *      IN THE HIGH COURT OF DELHI AT NEW DELHI


 +                    Date of Decision: 28.05.2012


 %      W.P.(C) 3271/2012 and C.M. No.6979/2012

        COMMERCIAL TOYOTA AND ANR               ..... Petitioner
                      Through: Mr. Lav Kumar Aggarwal, Adv.

                     versus


        SH. MUKESH GAUTAM AND ORS                    ..... Respondent
                      Through:

        CORAM:
        HON'BLE MR. JUSTICE VIPIN SANGHI


 VIPIN SANGHI, J. (Oral)

1. The petitioner by this writ petition under Article 226 of the

Constitution of India assails the order dated 25.04.2012 passed by the

National Consumer Disputes Redressal Commission in Delhi (National

Commission), whereby the petitioner's revision petition No.987/2012

has been dismissed.

2. Respondents No. 1 to 3 had preferred a consumer claim before

the District Consumer Disputes Redressal Forum constituted under the

Consumer Protection Act. The claim of the said respondents was that

they had booked a Toyota Qualis with the petitioner. Though the

model that they had booked was Euro 1 C-1, and had even paid for the

said model, they had been delivered the vehicle with model No. Euro 1

B2, which was a cheaper version of the said vehicle. The vehicle had

been purchased on 06.11.2001 whereas the complaint had been

preferred on April, 2004. The said respondent- complainants, however,

had pleaded in para 7 that the said defect came to their knowledge

after one year because the said complainants were not aware about

the technical knowledge about the vehicle.

3. Upon issuance of notice, the petitioner herein had filed its written

statement. In para 20 of the written statement, the petitioner raised

an objection that the vehicle had been purchased on 26.11.2011 and

the complaint had been preferred about 2½ years later and, therefore,

the complaint was barred by limitation.

4. The District Forum allowed the said complaint with Costs and

directed the petitioner herein to refund the amount of Rs.74,000/-

along with 18% interest per annum. The said amount represented the

difference between the two models. The petitioner preferred an

appeal before the State Commission constituted under the Consumer

Protection Act. The State Commission reduced the rate of interest

from 18% per annum to 7% per annum, while maintaining the order of

the District Forum.

5. The petitioner then preferred a revision petition before the

National Commission which has been dismissed. The National

Commission observed that the finding of the two Forums below on the

issues on merits were findings of fact, based on evidence, and the

same cannot be interfered with in revisional jurisdiction. The

petitioner's submission that the claim was barred by limitation was

dealt with by the National Commission in the following manner:-

"Counsel for the petitioner, then, contends that the complaint filed by the respondents was beyond the period of two years and thus liable to be dismissed as barred by time. Petitioner had raised the point regarding limitation in the Written Statement but neither an issue was framed nor was it decided by the District Forum. The State Commission has also not decided this point. Question of limitation is a mixed question of law and facts. Perhaps petitioner did not press this point before the fora below. Since this point was not pressed by the fora below the petitioner cannot be allowed to argue this point at this stage."

6. The submission of learned counsel for the petitioner is that under

Section 24A of the Consumer Protection Act, it was the obligation of

the District Forum to have rejected the claim petition, as it was barred

by limitation and no application had been made by the claimants to

seek condonation of delay.

7. As noticed by the National Commission, though the plea of

limitation/time bar was raised by the petitioner in their written

statement, no issue was sought to be framed on the aspect of

limitation at the instance of the petitioner. The petitioner candidly

admits that there is no discussion on the aspect of limitation in the

order passed by the District Forum, and, despite that being the

position, no ground of limitation was raised in the first appeal preferred

before the State Commission. The petitioner did not raise a grievance

in its first appeal that the District Forum had not decided the

petitioner's objection on the ground of limitation.

8. The submission of learned counsel for the petitioner that the

District Forum should have, on its own, refused to entertain the

consumer claim on account of the claim being barred by limitation, and

also on account of an objection being raised in the petitioner's written

statement, cannot be accepted for the reason that on the face of it, it

could not be said that the consumer claim was barred by limitation.

The consumer claim in para 7 stated as follows:-

"7. That the vehicle Euro-1-B-2 in place of Euro 1-C-1 was given by the opposite party and said fact came to in the knowledge of complainant after one year because the complainant was not aware about the technical knowledge about the vehicle."

9. The District Forum could not have assumed that the aforesaid

averment was untrue. In fact, the District Forum was bound to

proceed at the initial stage on the assumption that the said averment

was true and correct. If the aforesaid statement is accepted as true

and correct, surely the complaint could not be said to be barred by

limitation. Only if the said averment had been controverted and an

issue had been sought to be raised by the non-complainant, who is the

petitioner herein, the District Forum could have gone into the said

issue. It appears that the petitioner did not raise any such issue, even

though an averment was made in the written statement. Had the

petitioner been aggrieved by the failure of the District Forum to frame

an issue and decide the same on the aspect of limitation, certainly the

petitioner would have raised the said issue in its first appeal, which

was admittedly not done.

10. The issue of limitation, as rightly observed by the learned

National Commission, was a mixed question of fact and law, as it

depended on the determination of the issue as to when the

respondent-complainants got knowledge of the alleged fraud, and

when the cause of action last arose in their favour. The petitioner did

not seek the determination of the said issue. The said mixed question

of fact and law could not have been raised for the first time in the

revision proceedings before the National Commission.

11. Reliance placed by learned counsel for the petitioner on the

decisions of the Supreme Court in State Bank of India V. B.S.

Agricultural Industries (I), II 2009 CPJ 29(SC); Dr. V.N.Shrikhande

V. Mrs. Anita Sena Fernandes, 2010 STPL(LE) 44393 SC; and

Sigma Diagnosti7cs Ltd. V.United India Insurance Co. Ltd &

Anr, III(2009) CPJ 75 (SC), is misplaced, since the facts of the present

case are dis-similar.

12. This Court while examining the orders passed by the Tribunals, in

exercise of this Court's power of judicial review, does not sit in appeal

and does not go into the merits of the disputes between the parties.

The jurisdiction of this Court is only to see whether the Tribunal has

complied with the due procedure of law and the principles of natural

justice, and also to see whether there has been a complete failure of

justice on account of any perversity. Reference may be made to the

decision of the Full Bench of this Court in Ravinder Kumar Vs. Union

of India & Ors., 2002 VIII AD (Delhi) 252. In my view, the present is

not a fit case which calls for interference by this Court in exercise of its

power of judicial review of the order passed by the National

Commission.

Dismissed.

VIPIN SANGHI, J MAY 28, 2012 as