Punjab

Ludhiana

EA/15/155

Jagdev Sharma - Complainant(s)

Versus

Jagdev Singh - Opp.Party(s)

03 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                          Execution no. 155 of 15.06.2015

                                                          Date of Decision: 03.06.2016

 

Jagdev Sharma son of Shri Lakhmi Chand Sharma r/o H.No.1875, Sector 32 A, Chandigarh Road, Ludhiana c/o Vikas Logistic Shop No.27, Transport Nagar, Ludhiana.

                                                                             … Decree holder/Applicant

                                             Versus

Jagdev Singh Bus and Truck and All Type Repair Body Maker, 3520 Opposite Speedways Tyres, Hira Nagar, Near Truck Union, Ludhiana.

                                                                       Judgment Debtor/Respondent

Execution Application U/s 25 and 27 of the Consumer Protection Act, 1986.

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MS. BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For Decree Holder/Applicant            :         Sh.D.R.Rampal, Advocate.

For Judgment Debtor/Respondent     :        Sh.P.S.Batra, Advocate

 

PER G. K.DHIR, PRESIDENT

 

1.                Execution application under Section 25 and 27 of the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) filed by Decree Holder/applicant Sh.Jagdev Sharma through counsel by claiming that through order dated 29.10.2014 passed in Complaint No.130 of 05.02.2014, in case titled as Jagdev Sharma vs. Jagdev Singh Bus and Truck, this Forum directed Judgment Debtor/respondent to carry out the necessary repair in the chassis by filling cracks therein within 7 days from the receipt of the vehicle from the complainant(Decree holder) without any cost and even directed JD to pay Rs.20,000/- as compensation, but Rs.2000/- as litigation expenses. Compliance of these directions was ordered to be made within 30 days from the date of receipt of copy of the order. It is claimed that arguments were heard in the complaint on 22.10.2014, but the complaint was decided on 29.10.2014. During period intervening between 22.10.2014 to 29.10.2014, complainant got the vehicle repaired because same was requiring urgent repair. That vehicle was got repaired from Vishwakarma Motor Garage, village Jhabewal, Chandigarh Road, Ludhiana. It is claimed that decree holder was forced to pay Rs.28,100/- as repair charges to the said workshop vide cash memo No.217 dated 28.10.2014. Said repair charges of Rs.28,100/- along with compensation of Rs.20,000/- and litigation expenses of Rs.2000/- claimed. It is claimed that copy of order was received on 30.01.2015 and thereafter, complainant/decree holder approached JD many times for calling upon them to pay the above referred amounts, but JD kept on lingering the matter in respect of the payment of the amount. JD despite receipt of the certified copy of the order under execution in February 2015, had not complied with the order and as such, prayer made for punishing the JD for non compliance of the order for the period of 2 years.

2.                In the objections petition filed by JD, it is claimed that order under execution was passed on 29.10.2014 in the above referred complaint. However, it is claimed that decree holder has forged bill dated 28.10.2014 in connivance with Vishwakarma Motors Garage because decree holder has close relations with the said firm. No expert opinion ever obtained regarding the expenses required to be incurred in carrying out the repair qua chassis in question. So, JD is not bound to pay as per procured bill by the complainant. Rather, it is claimed that complainant/DH himself has not complied with the directions of the order dated 29.10.2014. JD has always remained ready and willing to pay Rs.22,000/- i.e. Rs.20,000/- as compensation and Rs.2000/- as litigation expenses. Decree holder never delivered the vehicle for carrying out the necessary repairs by the JD and as such, prayer made for dismissal of the execution application.

3.                In reply to the objections, it is pleaded interalia as if objections petition  not maintainable; JD  estopped by his act and conduct from filing these     objections; objection petition not supported by any affidavit and nor verified; objection petition filed for sake of objections only. Each and every other averment of the objections petition denied by terming the contents as  wrong. It is claimed that in case JD would have been willing to pay the compensation amount and litigation expenses, then he could have sent the cheque of Rs.22,000/- to the complainant or deposited the said amount in this Forum. Rather, compliance of directions of payment of compensation and litigation expenses made after receiving the notice of execution application. JD appeared in the execution on 31.8.2015 and thereafter, obtained 3-4 adjournments for compliance of the order. Original cash memo/bill dated 28.10.2014 regarding repair of the chassis from Vishwakarma Motor Garage, Village Jhabewal, Chandigarh Road, Ludhiana has already been placed   on record.

4.                Arguments on objections petition as well as qua execution application heard together and records gone through minutely.

5.                Perusal of order under execution  dated 29.10.2014 passed in Complaint No.130 of 5.2.2014 by this Forum reveals  that JD will carry               out the necessary repair in the chassis by filling the crack therein within 7 days from the receipt of vehicle from the complainant without any cost. As obligation was also cast on the complainant/DH to present the vehicle for repair of the   chassis, but that vehicle has not been presented with OP for repair and as such, certainly fault lay with the complainant in not complying with his part of the order under execution. Even if arguments on the complaint may have been heard on 22.10.2014 as alleged and the orders were pronounced on 29.10.2014, despite that complainant/DH was bound to wait for the orders and not act as per his choice.

6.                Order under execution has to be implemented in letter and spirit and not as per whims and fancies or ego and choice of decree holder. Decree holder has not mentioned the date as to when the chassis for repair was presented with OP. So, submission advanced by the counsel for JD has force that actually the chassis for repair was never sent by the decree holder to the JD. Being so, complainant not  only without wait for the order under execution, but even in abeyance of the terms and conditions of the order under execution seeking implementation thereof, as per his whims and fancies. Bill of Vishwakarma Motor Garage is of date 28.10.2014, but order under execution is of date 29.10.2014 and as such, the same reflects as if repair of the chassis in question got done by the complainant/DH at his own one  day prior to the pronouncement of order under execution. Complaint remained pending from 5.2.2014 to 29.10.2014. What goaded or abhord the complainant/DH to get the chassis repaired  one day prior to the pronouncement of order under execution, from the outside agency qua that no due explanation at all has been offered. If assuming for arguments sake that arguments in the complaint were heard on 22.10.2014, then getting of the chassis repaired on 28.10.2014 from the outside agency by decree holder itself reflects as if complainant wants to dictate his own terms instead of getting the order executed in letter and spirit. It is due to this that date of presentation of the vehicle or chassis for repair has not been specified by the decree holder deliberately.

7.                No appeal against order under execution shown to be filed and as such, order dated 29.10.2014 passed by this Forum above referred has become final. Being so, submissions advanced by  counsel for the JD has force that actually complainant/decree holder himself remained at fault in not presenting the vehicle for repair. If directions were issued to JD to repair the vehicle within 7 days from the receipt of the same, then it was the obligation of JD to repair the vehicle himself or through person of his choice. Decree holder could not have given command to JD to get the vehicle repaired from Vishwakarma Motor Garage alone. As the term of the order do not provide for getting the vehicle repaired from a mechanic or motor garage of choice of decree holder and as such, in case, decree holder has got the vehicle repaired from a mechanic or of motor garage of his choice, then OP not bound to pay the repair charges.

8.                Cheque of Rs.22,000/- bearing No.404113 dated 3.10.2015 was presented by JD for acceptance by decree holder and same was accepted by counsel for the decree holder by suffering statement on 28.10.2015. That acceptance was under protest because of non-payment of repair charges of Rs.28,100/- incurred on account of repair got from Vishwakarma Motor Garage through bill dated 28.10.2014. As liability of JD to pay that amount of Rs.28,100/- was not there as held above and as such, certainly, the raised protest through recorded statement of 28.10.2015 is futile. There is no provision made in the order under execution for payment of interest on the delayed payment and  such, provision even do not      exist in Section 25 and 27 of the Act and as such, submissions advanced by counsel for JD has force that JD not bound to pay the interest. The contumacious conduct of JD in not complying with the order alone would have invited penalty stipulated by Section 27 of the Act, but that contumacious conduct on part of JD is not there because payment of Rs.22,000/- made on 28.10.2015 and as such, submissions advanced by counsel for decree holder has no force that on account of delayed payment of compensation and cost of litigation, decree holder entitled to       interest. Decree holder has not specified the date as to when he                 approached JD for calling upon him to pay the cost of litigation and compensation after receipt of copy of order under execution and as such, it is contended by the counsel for the JD that decree holder not entitled to any interest. That submission of counsel for JD has force because compliance of the order has to made by JD on       application by the decree holder which was not done. As per law laid down by the Hon’ble Andhra Pradesh High Court in case titled as Maytas Properties Limited vs. A.P.State Consumer Disputes Redressal Commission, Anandnagar, Khairatabad, Hyderabad and others-AIR 2013-AP-93, proceedings under Section 27 of the Act can be taken by way of last resort. Powers under Section 27 to be exercised if JD despite several opportunities failed and/or remained negligent to comply with the directions is crux of the law laid down in the above cited case. If that be the position, then on contumacious default in complying with the order of payment of costs alone, JD could have been sentenced by way of imprisonment or penalty of Rs.10,000/- could have been imposed by invoking Section 27 of the Act. However, that contumacious default or negligence on the part of OP/JD not inferred because after putting into appearance on 31.8.2015, payment was made on 28.10.2015 through cheque of Rs.22,000/- above referred. As JD has complied with the directions issued through order under execution and decree holder as per his whims and fancies has got the chassis repaired without involvement of OP and as such, no part of order under execution remains to be implemented. Being so, objection petition deserves to be accepted and the same is hereby allowed, as a result of which, execution application filed by decree holder merits dismissal.

9.                As a sequel of above discussion, objections filed by the respondent allowed and consequently, execution application dismissed with no order as to costs. Copies of order be supplied to the parties free of costs as per rules.

10.              File be indexed and consigned to record room.

 

    (Babita)                                         (G.K.Dhir)

    Member                                         President

Announced in Open Forum

Dated:03.06.2016

Gurpreet Sharma.