ORDER

(Passed on  06/03/2019)

PER SHRI.ATUL D.ALSI, PRESIDENT.

           The applicant has filed this criminal case under section 27 of the

Consumer protection act 1986 for non compliance of judgement and order passed by the district Consumer Forum,  Chandrapur in consumer case number 124/10 passed on 15/1/2015.

2.      The complainant’s case before the Consumer Forum,  was that the complainant purchased a truck bearing number MH-34 M 2428 in November 2003 for a total consideration of Rs. 600000/- by obtaining loan from the opposite party. The complainant repaid the whole loan amount as per agreement but the opposite party did not issue no due certificate to the complainant. Opposite party seized the complainant vehicle from the house of complainant in his absence without giving prior intimation. Therefore the complainant issued legal notice on 17/6/2010 to the OP calling upon him to return back the vehicle. However the opposite party did not return the vehicle. Therefore the complaint case has been filed. After hearing both the parties, the district Consumer Forum,  Chandrapur, vide its order dated 15/1/2015 partly allowed the complaint directed the opposite party to return complainants truck bearing number MH 34 m2 428 within 30 days from judgement and order if it is not possible to return the truck, to pay Rs. 6 lakh to the complainant which interest @ 6% per annum 10 8 2010 along with compensation of Rs. 25000 and cost of Rs.2,000. The execution case came to be admitted and  summons was issued to the accused opposite party. The accused appeared before the Forum and particulars of offence were framed.
The complainant/applicant filed evidence by affidavit at exhibit 20. It has come in evidence that the complainant/applicant purchased a truck for a price of Rs 6,00,000/- in November, 2003. Due to sudden accident, the complainant had to go to Punjab for medical treatment. The driver of the complainant used to drive the complainant’s truck for Transport purpose and used to park the truck in front of house of the complainant in night hours. The opposite party seized the truck in absence of the complainant and sold it to third person without giving any intimation to the complainant. Therefor the complainant filed complaint case bearing number CC/124 of 2010 and the petition is decreed on 15/1/2015 and thereby the complaint came to be partly allowed.

 
3.         The opposite party file appeal bearing number  No. A/11/154 against the judgement and order of the Consumer Forum,  Chandrapur however the Hon’ble State Commission dismissed the appeal wide its order dated 9/3/2018. Thereafter the complainant issued notice to the opposite party calling upon it to comply the judgment and order but the opposite party intentionally disobeyed the judgment. Therefore the opposite party/ accused is liable for punishment of 3 years imprisonment and a fine of Rs. 10,000/-.
 

4.           The applicant/complainant has been cross examined by the Council for the opposite party which is at exhibit 22. It has come in cross examination that after dismissal of appeal bearing number No. A/11/154, the complainant had sent a notice to the OP/accused for compliance of the order and the opposite party/ accused, in it's reply to the notice, shown its willingness to handover position of the truck to the complainant and also to pay compensation of Rs. 27,000/-. It is further admitted in cross examination by the complainant that a demand draft of Rs. 27,000/- had been sent by the opposite party/ accused to the complainant towards compensation but the same was refused by the complainant/applicant and was sent back. It is admitted in cross examination by the complainant that the opposite party wanted to auction the truck but as soon as the complainant lodged objection to its sale with RTO, Nagpur in respect of transfer of ownership, the sale could not be completed. The complainant has admitted that the complainant has not physically inspected the truck by himself or through any expert person. The complainant admitted in cross examination that the opposite party was ready to give position of truck immediately after dismissal of the appeal, but the complainant is not ready to take the position. On the other hand the complainant wanted compensation of Rs 6,00,000/- along with interest.

5.       The counsel for the complainant argued that after the dismissal of the appeal by the State Commission on 9/3/2018, the complainant issued legal notice dated 19/4/2018 to the opposite party to comply the judgment and order but the opposite party failed to pay Rs 6 lacs along with interest and compensation. The complainant filed Inspection Report of Mr Vishnu Raipurkar who is a surveyor and loss assessor of Nagpur and as per his report dated 3/12/2015 the condition of the truck is not good and market value of the truck is about 85,000/- to 95,000/- only. Therefore the complainant was unable to take delivery and therefore the opposite party is liable to pay Rs 6,00,000/- along with interest and compensation. However in spite of service of notice for the compliance of judgement and order Opposite Party/accused failed to comply it deliberately. Therefore the opposite party is liable for punishment under section 27 of the Consumer Protection Act,1986.
The council for the opposite party argued that after dismissal of the appeal, the opposite party replied the legal notice issued by the complainant that the opposite party is ready to handover possession of the truck along with compensation. The opposite party also issued demand daft of Rs. 27,000/- to the complainant towards compensation but the complainant refused to accept it. The complainant never inspected the truck and the truck is in a good condition. The complainant has not paid the loan amount along with interest. The Complainant was never ready to take the position of the truck and he has admitted the same in his cross examination. Therefore there is no willful disobedience of the first part of judgement and order of the Consumer Forum, Therefore the execution application deserves to be dismissed.

6.           We have heard counsel for both the parties at length and have also perused the documents put before us in this proceeding.

7.         The original complaint bearing No.124/2010 was decided by the District Consumer Forum, Chandrapur on 15/2/2011with a direction that the OP/accused shall return the truck within 30 days from the date of judgment or if it is not possible to return the truck, then to refund its cost Rs.6 lacs alongwith interest @6% p.a. from 10/8/2010 till realization and also to pay Rs.25,000/- towards compensation for physical and mental agony and Rs.2000/- towards cost of litigation to the complainant/applicant.

8.         The OP/accused had preferred an appeal bearing No.A/11/154 against the judgment and order passed in complaint case bearing No.CC 124/2010 decided on 15/2/2011 which was circulated on 27 April,2011 before the Hon’ble State Commission, Nagpur Bench. Therefore, the OP/accused has not complied the first part of the judgment i.e. return of truck within 30 days nor refunded the cost of Rs.6 lac alongwith interest, till the circulation and admission of appeal.

9.      The Hob’ble State Commission, Nagpur Bench was pleased to pass  order dated 9/3/2018 in appeal No.A/11/154 thereby dismissing the appeal. However, after dismissal of the appeal, till the date of this judgment, the OP/accused has not complied the second part of original judgment i.e. refund of Rs.6 lacs  alongwith interest @6% p.a. from 10/8/2010 till realization. The OP/accused has not brought on record any cogent evidence to show inability to comply the judgment and order passed by District Consumer Forum, Chandrapur in CC No.124/2010.  Therefore, the accused/OP is guilty of willful disobedience of judgment and order passed by District Consumer Forum, Chandrapur in CC No.124/2010 and is liable for punishment of simple imprisonment of two years and a fine of Rs.2000/- till the compliance of judgment and order in CC No.124/2010 decided on 15/2/2011. After compliance of the judgment and order passed by District Consumer Forum, Chandrapur in CC No.124/2010 decided on 15/2/2011, the OP/accused shall be released from the Civil Jail. Therefore, the following order is passed.

                                                FINAL ORDER

  1.     Execution Application Nos.EA/11/22 is partly  allowed.

  2.     The OP/accused shall undergo a simple imprisonment of 2 years.  

  3.     The accused shall  also pay a fine of Rs.2000/- .

  4.     The accused shall be taken in Civil Jail Custody for a period of two years

          or till the complaiance of order.

  5.   Copy of the order be furnished to both the parties free of cost.

          (Smt.Kirti Vaidya (Gadgil)                         (Shri.Atul D.Alsi)

                        Member                                                      President