RAJIV SHUKLAversusGOLD RUSH SALES AND SERVICES LTD. & ANR

                        [2022] 11 S.C.R. 213                              213


                          RAJIV SHUKLA                                    A
                                  v.
      GOLD RUSH SALES AND SERVICES LTD. & ANR.
                   (Civil Appeal No. 5928 of 2022)
                        SEPTEMBER 8, 2022                                 B
         [M. R. SHAH AND KRISHNA MURARI, JJ.]
       Consumer Protection Act, 1986 – s.21 – Appellant booked a
new car, paid the entire sale consideration – Respondent no.1-dealer
delivered a used car which was used as “Demo-Test Drive Vehicle”
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– National Commission setting aside the concurrent findings
recorded by the District Forum and State Commission, modified the
orders and directed compensation of Rs.1 lakh to be paid to the
appellant – On appeal, held: Once the new car was booked and
full sale consideration was paid, a duty was cast upon the dealer to
deliver a new car which is not defective – To deliver the defective       D
car against the new car was not permissible – District Forum as
well as the State Commission on appreciation of evidence on record
concurrently found that the car delivered was used car – Such
findings of facts were not required to be interfered by the National
Commission in exercise of the revisional jurisdiction – It acted beyond
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the 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 even
itself directed that the compensation of Rs.1 lakh be paid to the
complainant for the delivery of the defective car – Not to deliver
the new car despite the full sale consideration paid and/or to deliver    F
the defective car is unfair trade practice – District Forum and the
State Commission justified in directing the respondent no.1 to replace
the delivered car and to deliver a new car – Impugned order set
aside – Order passed by the District Forum confirmed by the State
Commission restored – Costs of Rs.1 lakh to be paid by respondent
                                                                          G
no.1.
       Consumer Protection Act, 1986 – s.21 – Revisional jurisdiction
– Powers of National Commission – Exercise of – Held: 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
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214            SUPREME COURT REPORTS                         [2022] 11 S.C.R.


A     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
B
      appreciation of evidence on record.
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5928
      of 2022.
             From the Judgment and Order dated 04.01.2016 of the National
C     Consumer Disputes Redressal Commission, New Delhi in Revision
      Petition No. 2082 of 2015.
           Praveen Agrawal, Gautam Kumar Laha, Venkata Krishna
      Kunduru, Mrs. Kiran Mahato, Advs. for the Appellant.
            Sidharth Bhatnagar, Sr. Adv., Abhinav Ramkrishna, Ms. Anjali
D     Chauhan, 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.
E           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 referred to as the ‘National
      Commission’) in Revision Petition No.2082 of 2015 by which the National
      Commission in exercise of revisional jurisdiction has set aside the
      concurrent findings recorded by the District Forum as well as the State
F
      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
G     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
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RAJIV SHUKLA v. GOLD RUSH SALES AND SERVICES LTD.                            215
               & ANR. [M. R. SHAH, J.]

used car. It was also having various other defects. That according to the    A
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 “Demo-
Test Drive Vehicle”. The original complainant 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
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prayers:
      “i) pass the order to opposite party to replace aforesaid delivered
      used car Tata Victa GX TC Model no. 2005, Chasis No.
      446370702-938757, Registration No. U.P. BS-8084 and delivered
      new car/vehicle to the applicant/ consumer.
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      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            D
      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        E
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    F
delivered car was used car and was being used as “Demo-Test 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
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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.                          H
216             SUPREME COURT REPORTS                          [2022] 11 S.C.R.


A           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.
              3. Shri Praveen Agrawal, learned counsel appearing on behalf of
      the appellant – original complainant has vehemently submitted that the
B     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
C     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
D     Commission has exercised the powers beyond the scope and ambit of
      revisional jurisdiction under Section 21 of the Consumer Protection Act,
      1986.
             3.1 It is further submitted by learned counsel for the appellant
      that even otherwise the findings recorded by the National Commission
E     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
F     consideration for a new car, the duty was cast upon the dealer to supply
      the new car which was booked. It is submitted that non-supply 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
G     previously deposited amount.
            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.

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RAJIV SHUKLA v. GOLD RUSH SALES AND SERVICES LTD.                               217
               & ANR. [M. R. SHAH, J.]

      4. Mr. Abhinav Ramkrishna, learned counsel appearing on behalf            A
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.           B
       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.                           C
       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           D
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            E
supposed to and/or bound to deliver the new car. Instead, the respondent
no.1 – dealer delivered the used car which was used as “Demo-Test
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.         F
Not to deliver the new car 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.
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       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
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218             SUPREME COURT REPORTS                             [2022] 11 S.C.R.


A     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
      in any consumer dispute which is pending before or has been decided by
B
      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
C     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
D
      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 jurisdiction
      conferred under Section 21(b) of the Consumer Protection Act.
             7.2. As observed hereinabove, both, the District Forum as well as
E     the State Commission specifically gave the findings that the vehicle
      delivered was used car which was used as “Demo-Test 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
F     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
G     therefore the District Forum as well as the State Commission were
      justified in directing the dealer to give delivery of a new car.
           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
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RAJIV SHUKLA v. GOLD RUSH SALES AND SERVICES LTD.                               219
               & ANR. [M. R. SHAH, J.]

and set aside. The judgment and order passed by the District Forum              A
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
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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 Project Committee (MCPC), Supreme
Court of India, New Delhi.                                                      C

Divya Pandey                                                  Appeal allowed.
(Assisted by : Roopanshi Virang, LCRA)


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