1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent(s) as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 22.01.2016 of the State Consumer Disputes Redressal Commission, Kerala, Thiruvananthapuram (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 395/2013 in which order dated 18.03.2013, District Consumer Disputes Redressal Forum, Palakkad (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 144/2011 was challenged, inter alia praying to set aside the impugned order passed by the State Commission.

2.       While the Revision Petitioner (hereinafter also referred to as OP-1) was Appellant before the State Commission and OP-1 before the District Forum; the Respondent-1 (hereinafter also referred to as complainant) was Respondent-1 before the State Commission and Complainant before the District Forum and the Respondent-2 (hereinafter also referred to as OP-2) was Respondent-2 before the State Commission and OP-2 before the District Forum. For sake of convenience, parties may also be referred to as they were arrayed before the District Forum.

3.       Notice was issued to the Respondent(s). Due to absence of Respondents despite service, they were proceeded ex-parte. Parties filed Written Arguments/Synopsis on 17.12.2021 (Petitioner) and 22.10.2019 & 16.12.2021 (Respondent-1/Complainant). Delay in filing the RP is condoned after considering the reasons stated in IA/1046/2017.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:-

The complainant is the registered owner of a 2006 model Autorickshaw manufactured by the Petitioner/OP-1, purchased for Rs. 1,68,000/- on 23.09.2006. The Respondent-1/complaint alleges that the OP-1 promised a mileage of 35 KM per litre for the vehicle, but it failed to deliver the promised mileage. The primary issue noted was heavy fuel consumption. Despite repeated attempts to rectify the problem through the dealer (Respondent-2/OP-2), the issue persisted. Even during the warranty period, the vehicle became unserviceable, leading to significant financial loss and mental distress for the complainant. The complainant incurred repair costs, and the vehicle's unsuitability for use prevented loan repayment to the State Bank of India. Furthermore, it is understood that the sale of the vehicle was halted due to manufacturing defects. Alleging deficiency in service, the complainant sought various reliefs through the consumer forum.

5.       Vide Order dated 18.03.2013, in the CC no. 144/2011 the District Forum has partly allowed the complaint and directed OPs to pay the complainant an amount of Rs. 84,000/- as the price of the vehicle and pay Rs. 3,000/- as cost of litigation.

6.       Aggrieved by the said Order dated 18.03.2013 of District Forum, Petitioner appealed in State Commission and the State Commission vide order dated 22.01.2016 in FA No. 395/2013 has upheld the order of District Forum and dismissed the appeal.

7.       Petitioner has challenged the said Order dated 22.01.2016 of the State Commission mainly on following grounds:

1. The lower forums have gravely erred in disregarding the fact that the complaint filed by Respondent-1/Complainant is time-barred due to the principle of limitation. The vehicle in question was purchased on 23.09.2006, and after nearly four and a half years of usage, Complainant filed a consumer complaint alleging a manufacturing defect on 26.08.2011. Proceeding with such a complaint is a clear violation of legal principles, and the lower forums have erred in allowing it to proceed. The lower forums erred by failing to recognize that complainant does not meet the criteria to be considered a consumer as defined under the provisions of the Consumer Protection Act, 1986. Given that complainant had been utilizing the vehicle for commercial purposes for over four years, the complaint should have been dismissed solely on this basis.

2. The lower forums neglected to acknowledge that the subject vehicle, a Minidoor model, is primarily intended for commercial use. Furthermore, complainant did not provide any evidence or documentation to substantiate that the vehicle was purchased for the purpose of earning a livelihood. As a result, the lower forums exceeded their jurisdiction, rendering the impugned order inherently illegal and liable to be quashed and set aside. The lower forums failed to consider the possibility that the alleged defects in the vehicle could have arisen due to negligent maintenance or rough usage by complainant. Complainant did not avail themselves of regular maintenance services, this factor should have been taken into account when assessing the alleged defects in the vehicle.

3. The State Commission erred by overlooking the unsubstantiated allegations made by complainant regarding the vehicle's mileage and fuel consumption. The Petitioner/OP-1 never guaranteed a specific mileage of 35 km per litre, as mileage can vary due to factors such as maintenance, road conditions, driving habits, and fuel quality. Therefore, the OP-1 cannot be held accountable for not meeting the alleged mileage requirements. The lower forums failed to recognize that the relationship between the OP-1 and Respondent-2/OP-2 is that of principal to principal, not principal and agent. As such, the OP-1 cannot be held responsible for any actions or omissions on the part of OP-2. The lower forums neglected to acknowledge the successful track record of vehicles of the 'Minidor' model, which have been operating successfully throughout India for over 18 years. This demonstrates the reliability and performance of the vehicle model, further supporting the OP-1's position.

4. The lower forums erred in accepting the observations of the expert commissioner regarding the positioning of the air cleaner in the vehicle without considering that all vehicle models are approved by independent testing labs authorized by the Central Government. Therefore, the report in question cannot be deemed conclusive. Furthermore, it fails to definitively establish how alleged defects are attributed to manufacturing issues in the subject vehicle. The District Forum overlooked the fact that the original complaint filed by complainant is devoid of substance, containing only baseless allegations unsupported by evidence.

8.       Heard counsel of Petitioner. None appeared for the Respondents despite service, accordingly respondents were proceeded ex-parte. However, as the Respondent-1/complainant has filed his written synopsis, the same is being considered. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

1. The Respondent-1/complainant asserted that on 23.09.2006, the complainant purchased a Minidor Auto-rickshaw from the Petitioner/OP-1, Force Motors Ltd., distributed through the Respondent-2/OP-2, for Rs. 1,68,000/-. The vehicle's promised mileage of 35 KM/litre of fuel was never achieved due to manufacturing defects, despite numerous attempts by the OPs to rectify them. The financing for the vehicle was arranged through a bank loan from the State Bank of India, which defaulted due to the vehicle's failure on the road, significantly decreasing the complainant's CIBIL credit score. Despite bringing the vehicle to OP-2 for repairs on multiple occasions, including on 13.03.2007, 14.06.2007, 21.07.2007, and 05.08.2007, the defects were not rectified satisfactorily. Various defects in the engine were reported to OP-2 on 21.07.2007, and subsequently, but they were unable to rectify the issues despite repeated attempts. The vehicle constantly became unserviceable during the warranty period, resulting in significant financial losses for the complainant.

2. The OP-2's attempts to rectify the defects by replacing vital engine parts were unsuccessful. A legal notice was sent on 21.06.2011, to the OP-1 and OP-2, alleging deficiency in service and unfair trade practices and claiming compensation. No response was received to the notice. Consequently, on 25.08.2011, the complainant filed CC No. 144 of 2011 before the District Forum, Palakkad, seeking a refund of the auto-rickshaw's price, Rs. 1,68,000/-, from the OPs. The OP-2 remained absent and was set ex-parte before both the District Forum and the State Commission. An affidavit was filed by the complainant before the District Forum on 19.12.2011. The witness PW1 was examined and cross-examined by the OP-1 on 04.12.2012. PW2, Sabarish, who served as the Sales and Service Manager with the OP-2, was also examined as a witness. However, despite filing a proof affidavit, he was unavailable for cross-examination.

3. The District Forum allowed the complaint and issued an order on 20.04.2013, directing OP-1 to pay Rs. 84,000/- to the complainant as the price of the vehicle and Rs. 3,000/- towards costs. The order also mandated handing over the vehicle to OP-1 upon receipt of the ordered amount, to be complied with within one month. However, no amount has been deposited thus far. An appeal, dated 05.06.2013, designated as Appeal No. 395 of 2013, was filed by OP-1 before the State Commission against the judgment of the District Forum. The appeal was dismissed on 22.01.2016, with concurrent findings that it lacked merit. The State Forum noted the complainant's numerous attempts to rectify the defects and reduced 50% depreciation for the vehicle. Additionally, the unavailability of spare parts and the discontinuation of the vehicle model in the market were emphasized as factors that should have been addressed by the manufacturer to prevent consumer hardship.

4. The Respondent-1/Complainant further asserted that the revision petition is time-barred, with a delay of 152 days in its filing. Despite the contention that ignorance regarding the appeal's disposal is not a valid ground for condoning the delay, given the gravity of the case and the significant delay, it is not considered justifiable. The Owner's Service Manual lists authorized service stations, with OP-2's address shown as the authorized service agency in Palakkad. However, this service station has ceased operations, and no alternative service stations have been authorized by OP-1, constituting deficiency in service and unfair trade practices. The Expert's Report identified excessive fuel consumption and engine issues due to decompression and poor performance. The discontinuation of manufacturing for this vehicle model and the unavailability of spare parts worsen the situation. The last service recorded in the Service Coupon Book was on 13.03.2007. The closure of OP-2's service station prevented the complainant from receiving timely services for the vehicle. Exhibit A17, a judgment dated 30.12.2010, indicates previous complaints before the District Forum, Palakkad, concerning similar manufacturing defects in vehicles of the same model.

5. The counsel for Petitioner/OP-1 contends that the respondent-1's/complainant’s complaint should have been dismissed due to being time-barred under Section 24A of the Consumer Protection Act, 1986. They argue that the cause of action arose on the date of purchase and again when defects were reported in 2007, yet a legal notice was issued only in 2011, after a four-year gap without any evidence of communication between the parties during that time. The State Commission erred in affirming the District Forum's decision despite acknowledging the delay in filing the complaint, contrary to settled law. Additionally, the counsel argues that both lower fora wrongly relied on the inspection report of the Assistant Motor Vehicles Inspector, which failed to establish low mileage in the Minidor. The vehicle was in an unusable state during inspection, making it impossible to assess fuel consumption accurately. The counsel claims that the inspector's suggestion of halted production and unavailability of spare parts was unsubstantiated and objected to by OP-1, yet ignored by the fora. They emphasize the long-standing presence of the Minidor model in the market and the continued production of spare parts by the petitioner company, challenging the credibility of the inspector's opinion.

6. The counsel further argued that the alleged defects in the Minidor were due to the complainant's failure to adhere to recommended maintenance, as they did not avail the mandated free services. They emphasize that the warranty terms clearly state that warranty claims will not be entertained unless all services up to the date of the claim have been performed by an authorized dealer. According to the service record, no part of the vehicle required replacement during the warranty period, indicating it was free of manufacturing defects. The alleged cause of action occurred four months after the warranty expiry, relieving the OP-1 of liability for the complainant's failure to adhere to warranty terms. Furthermore, the counsel contends that the fora overlooked the warranty's terms, which include repair services, and erroneously directed a refund beyond the warranty period. The complainant is not a consumer under the Consumer Protection Act, 1986, as they purchased the vehicle for commercial purposes. Additionally, they assert that the complainant's complaint was an afterthought to frustrate proceedings with a lending bank, and the complaint should have been dismissed for non-joinder of parties, including the bank.

7. The counsel for Petitioner/OP-1 relied on following judgements:-

1. In SBI v. B.S. Agriculture Industries (I), (2009) 5 SCC 121, the Hon’ble Supreme Court held that:-

“12. …..it is the duty of the consumer forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

2. In Allahabad Bank vs. Ajay Kumar (RP/1262/2019), pronounced on 05.07.2019 (NCDRC), the National Commission held that:-

“7. …..The Hon’ble Apex Court held that the settled legal proposition of law of limitation has to be applied with all its rigour when the statute so prescribes, though it may harshly affect a particular party.  The Petitioner has not been able to give adequate and sufficient reason which prevented him to approach the State Commission within the limitation.”

3. In Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583, the Hon’ble Supreme Court held that:-

“21. We must, therefore, hold that:

(i) The explanation added by the Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18-6-1993 is clarificatory in nature and applies to all pending proceedings.

(ii) Whether the purpose for which a person has bought goods is a “commercial purpose” within the meaning of the definition of expression ‘consumer’ in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case.

(iii) A person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood, by means of self-employment is within the definition of the expression ‘consumer’.”

4. Sanjay D. Ghodawat vs. R.R.B. Energy Ltd., 2010 (4) CPJ 178

9.       We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties. In this case, there are concurrent findings of both the fora below against the petitioner herein.

10.    The District Forum condoned the delay in filing the complaint, as per the order in IA 82/12, which is not available in the records of the present proceedings. As noted by the Hon’ble Supreme Court in similar circumstances Sheo Raj Singh (Deceased) through LRs & Ors. vs. Union of India & Anr., Civil Appeal No. 5867 of 2015:-

“29. ….. we reiterate that condonation of delay being a discretionary power available to courts, exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause being shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned whereas, in certain other cases, delay of long periods can be condoned if the explanation is satisfactory and acceptable….. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts.

30. …. Law is fairly well-settled that “a court of appeal should not ordinarily interfere with the discretion exercised by the courts below”. If any authority is required, we can profitably refer to the decision in Manjunath Anandappa v. Tammanasa, which in turn relied on the decision in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha where it has been held that “an appellate power interferes not when the order appealed is not right but only when it is clearly wrong”.”

11.   Relevant para of State Commission is reproduced below:-

“4. The vehicle purchased by the complainant is a commercial one. By that fact alone it cannot be said that the complainant is not a consumer. Apparently the vehicle was purchased for use to earn livelihood for the complainant. The allegation is that the vehicle developed a major defect of excessive consumption of fuel. It is in order to establish this allegation, a Commissioner was got appointed by the complainant. His report is Ext. C1. From Ext C1 it is seen that the commissioner inspected the vehicle on 15/10/2012. At that time the vehicle was not in running condition. The Commissioner could not start the vehicle. Consequently no road test could be performed. It is reported that none of the parties made arrangement for starting the vehicle for conducting road test. Oil was found leaking through gaskets and breathers of the engine. The commissioner found that as the symptom of decompression weak engine due to blow by gases through piston rings as well as poor performance causing higher fuel consumption. But the commissioner could not assess the fuel average of the vehicle and it was not in running condition. The other parts of the vehicle were found in working condition on physical inspection. The commissioner also reported that the manufacturer had stopped production of this particular kind of vehicle some years back and most of the spare parts are not easily available in the local market. This was one of the circumstances for passing the impugned order. The commissioner has assessed the value of the vehicle at the time of inspection at Rs. 15,000/-approximately. Thus it can be seen that there is evidence to show that the vehicle suffered from manufacturing defect. Ext. C1 report shows that there was in fact manufacturing defect for the vehicle. One of the contentions is that the complainant had failed to avail the 3^rd 5^th 6^th mandatory services for the vehicle. PW1 explained that this was because the company itself was found locked. There is no evidence to show otherwise PW2 is an independent witness who deposed to the oil leakage of the vehicle. The definite case is that the complainant had approached the opposite party, several times to rectify the defect but they could not succeed. Hence though there is delay in filing complaint, it is not clear when the last attempt to rectify the defect was made.”

The State Commission determined that the mere fact that the purchase was commercial in nature does not necessarily imply that the complainant is not a consumer. The burden of proof lies with the OP to demonstrate that the complainant is not a consumer and that the vehicle was exclusively used for commercial purposes.

12.    Relevant paras of District Forum are reproduced below:-

“Ext.A7 ,to A12 shows the complainant had purchased items to repair the vehicle within one year from the date of purchase. No contradictory evidence produced by the opposite parties. The complainant stated that after several attempts to rectify the defects by removing and replacing almost all the vital and valuable parts of the engine the 2nd opposite party could not succeed….Further commissioner stated that the air cleaner of the vehicle is not fitted in a lower level, so as the water from the road can enter into the engine…..The opposite parties had not produced evidence to show that service center was available at the period of 5^th and 6^th service…”

It is apparent that the vehicle experienced issues from its inception, as observed by the District Forum. Despite numerous attempts by OP-2, the issues remained unresolved. These persistent problems, present since the beginning, strongly indicate a manufacturing or inherent defect. Such defects manifested during the warranty period, emphasizing their presence from the outset. Even if the contention of a Principal to Principal relationship, as asserted by OP-1, is accepted, both the manufacturer and the dealer are jointly and severally liable for the deficiency in service and are obligated to compensate the complainant accordingly. In the District Forum, the complainant asserted that OP-2 closed their shop. Subsequently, no further service was provided for the vehicle. The OPs failed to present any contradictory evidence to refute this claim in either the State Commission or the District Forum. Moreover, the OPs did not provide any evidence to demonstrate the availability of a service center during the period for the fifth and sixth services.

13.    The Commissioner noted several significant points regarding the vehicle in question. Firstly, OP-1 had discontinued production of the specific model, rendering spare parts unavailable. Secondly, there were pending cases concerning defects in the same model before the District Forum. Additionally, the expert Commissioner identified defects in the vehicle, notably oil leakage through gaskets and breathers of the engine, suggesting decompression weakening likely caused by blow-by gases through piston rings. This issue exacerbated poor performance, resulting in increased fuel consumption. However, due to the vehicle's inoperable condition, the Commissioner could not assess its fuel efficiency. Despite these mechanical issues, upon physical examination, other components of the vehicle were found to be operational. The mileage issue can be attributed to a manufacturing defect, as mentioned by the Commissioner in the report.

14.    We have carefully gone through the orders of State Commission, District Forum, and other relevant records. Both the State Commission and District Forum have issued well-reasoned orders, duly and appropriately addressing the issues raised by Petitioner. We are in agreement with the findings of State Commission and District Forum.

15.     As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. "

16.   We find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld. Accordingly, the RP is dismissed. 

17.     The pending IAs in the case, if any, also stand disposed off.