Punjab

Ludhiana

EA/15/264

Manjit Kaur - Complainant(s)

Versus

lally Motors India Pvt.ltd. - Opp.Party(s)

Sunil Goel adv

02 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                             Execution Application No:264 dated 10.12.2015                                  

                         Date of decision: 02.03.2023. 

Manjit Kaur wife of Taranjit Singh, resident of 24-B, Model Town, Behind Lal Kothi, Ludhiana.                                                                                                                                                                       Decree holder/complainant.

                                                Versus

1.The Lally Motors (India) Pvt. Ltd, authorized dealer of Wolkswagon, G.T.Road, Jugiana, Ludhiana, through its Director.

                                                                             Opposite party no.1

2.National Insurance Company, Gill Road, Ludhiana, through its Branch Manager.

Judgment Debtor/Opposite party

Execution U/s 27 of the Consumer Protection Act, 1986

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH.JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For decree holder/complainant                              :         Sh.Sunil Goel, Advocate

For opposite party No.1                                      :         Sh.M.S.Sethi, Advocate

For judgment debtor/opposite party No.2  :         Sh.D.R.Rampal, Advocate

 

ORDER

PER SANJEEV BATRA, PRESIDENT

 

1.                This order of this Commission will adjudicate the core issues/questions arising between the parties hereto in relation to execution, discharge and satisfaction of the order under execution passed in CC No.678 of 11.09.2013 decided on 26.03.2014 by this Commission.

2.                In the month of January 2013, the car of the complainant make Wolkswagon Polo bearing registration No.PB-10-AG-0038 met with an accident and the same was repaired in the workshop of OP1(The Lally Motors) and estimated expenses of Rs.4,94,068.17P plus taxes were incurred by the complainant. He preferred the claim with the OP2(National Insurance Company) which was not settled. Feeling dissatisfied from the non-settlement of the claim, the complainant filed the complaint No.678 of 11.09.2013.

                    OP1 contested the claim of the complainant and categorically asserted that the complainant is liable to pay the estimate charges of Rs.10,000/- on the estimate amount of Rs.4,94,068/- along with parking charges, security & maintenance charges @250/- per day from 8/2013 till taking the delivery of the vehicle which is lying ready after repair since long. It was further asserted that it is the complainant who causing the delay in taking the delivery of the vehicle.

                   OP2 in its reply assailed the claim to be pre-mature. However, surveyor namely M/s R.P.Gupta and Company deputed by the OP2 in his motor survey report final dated 09.09.2013 had assessed the loss to the tune of Rs.2,34,800/-. Further, OP1 the insurance company has never refused to settle the claim which is under process and scrutiny of the documents is being carried out and the OP2 also prayed for dismissal of the complaint.

                   After hearing the arguments of counsel for the parties, The Learned Predecessor of this Commission was pleased to pass the order dated 26.03.0214 and allowed the complaint against OP2 only. The operative part of the said order is reproduced as under:-

“In view of the above discussion, we hereby allow this complaint of the complainant against OP2 only and direct OP2 to settle and pay the claim of the complainant as per the terms and conditions of the insurance policy, failing which, OP2 is liable to pay the interest @9% p.a. from the date of lodging of claim till its realization. For causing harassment and sufferance, further, OP2 is directed to pay litigation costs to the tune of Rs.4000/-(Four thousand only) along with parking charges, if any, to the complainant. Keeping in view the facts and circumstances of the present case, no order as to compensation is passed. Order be complied within 30 days of receipt of copy of the order, which be made available to the parties free of costs. File be completed and consigned to record room.”

 

                   However, complaint against OP1 was dismissed.

3.                Complainant, instead of filing the execution application, preferred yet another complaint bearing CC No.84 of 09.02.2015 before this Commission and prayed for issuance of direction to OP2 to pay the parking charges of Rs.1,15,750/- and future parking charges, if any, besides Rs.2,68,215.66P along with interest @9% per annum from the date of lodging of claim till realization of the entire amount and Rs.22,000/- as litigation expenses and Rs.1 lac as compensation.

                   However, The Learned Predecessor of this Commission while passing the order dated 27.02.2015 had not admitted the second complaint on the ground of maintainability being barred by law. The Learned Predecessor of this Commission had made the observations to the effect that if there is any amount due, which has not been paid by the OP2, then the complainant can get the same recovered by way of filing an execution application.

                   Feeling aggrieved against the order dated 27.02.2015, the complainant preferred First Appeal No.394 of 2015 before the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh but the same was dismissed vide order dated 17.03.2016 as the same was found without merit. Further, the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh made the following observations which are reproduced as under:-

“The remedy for the complainant now appellant is to only seek execution of the order of District Forum in execution proceedings and Executing Forum would be competent Forum to determine the point as to whether amount has been paid in accordance with the terms and conditions of the insurance policy between the parties or not.”

 

4.                In the meanwhile on 10.12.2015, the complainant/decree holder filed the present execution application but without disclosing the factum of filing the second complaint.

                   Thereafter, office report was sought and it was reported by the concerned dealing official of this Commission vide his report dated 15.12.2015 that an amount of Rs.2,38,800/- was deposited by the OP2 in this Forum and FDR of the same has been prepared on 17.05.2014.

                   In her execution application, the decree holder/complainant has prayed for issuance of the directions to the JD/OP to comply with the orders of the Hon’ble Forum and also to pay the parking charges along with interest and litigation expenses and compensation of Rs.1 lac.

5.                OP1 did not choose to file reply to the execution application. However, JD/OP2 i.e. National Insurance Company Limited submitted the objections stating therein that on receipt of the copy of the order dated 26.03.2014, the opinion of surveyor namely M/s R.P.Gupta & Company was sought who vide his opinion dated 4.9.2013 re-affirmed his earlier findings of survey report and assessed the loss to the tune of Rs.2,34,800/-. It was further emphasized that the OP2 is not liable to pay the parking charges as per the terms and conditions of the insurance policy. Further, the delay is on the part of the complainant/decree holder and he cannot take advantage of her own wrongs.

6.                After taking into cognizance of findings given by this Commission in second complaint No. CC No.84 of 09.02.2015 and First Appeal No.394 of 2015 before the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, the complainant/decree holder filed the amendment application and sought direction to incorporate the subsequent events of filing of second consumer complaint and appeal by way of elaboration of facts. Ultimately, she prayed for amendment in the prayer clause as well as seeking direction against respondent no.2 to pay the total amount of Rs.4,91,885/- along with an amount of Rs.3,75,000/- as parking charges till 31.03.2017 and also future parking charges from April 2017 onwards.

7.                On 02.11.2017, the JD/OP2 filed the reply to the application for amendment of execution application and assailed its maintainability. Further, JD/OP2 reiterated its stand that the complainant/decree holder is not entitled to any parking charges as this Commission has not given any specific direction with regard to the payment of alleged parking charges. Further, there is no condition in insurance policy to pay the parking charges and the complainant/decree holder is estopped from demanding the parking charges by her act and conduct. Further, JD/OP2 has complied with the order under execution by depositing the amount of Rs.2,38,800/- in this Commission in favour of the complainant/decree holder.

8.                This amendment application is pending since long and the parties here are aware of the facts which are mentioned in the amendment application. Due to considerable elapse of time, allowance or disallowance of this application could result in de novo proceedings. So, this Commission is of the considered opinion that ends of justice would be met if the amendment application is treated as “Supplementary Execution Application” and reply-cum-objection filed by the JD/OP2 is treated as “Supplementary Reply-cum-Objections of JD/OP2”. The contents of supplementary execution application and the reply-cum-objection of OP2/JD2 would be considered while deciding the main execution application. Accordingly, the application for amendment of execution application stands disposed of.

9.                Now perusal of the operative part of the impugned order dated 26.03.2014 shows that the OP2 was directed to settle and pay the claim of the complainant as per the terms and conditions of the insurance policy, failing which, the OP2 was liable to pay the interest @9% p.a. from the date of lodging of claim till its realization. Further, the second part was qua causing harassment and sufferance, for that, the OP2 was further directed to pay litigation costs to the tune of Rs.4000/- along with parking charges,“ if any,” to the complainant. The word “if any” seems to have opened the corridor of uncertainty and multiple interpretations. The law is well settled that the executing court cannot go beyond the decree and it must take the decree at its original stand and execute according to its terms. But when the terms of a decree are vague or ambiguous, an executing court can construe the decree to ascertain its precise meaning. For this purpose, the executing court may refer not only to the judgment, but also the pleadings of the case. In this regard, a reference can be made to the law laid down in case titled as Topanmal Chhotamal vs.Kundomal Gangaram-AIR 1960 SC 388.

10.              Applying the principle envisaged in the said citation, it can be seen that at the time of filing the complaint, the complainant did not pray for payment of parking charges in her original complaint. Rather it is the OP1(The Lally Motors) who in its reply had demanded an amount of Rs.4,94,068/-, Rs.10,000/- estimated charges along with parking charges, security and maintenance charges @250/- per day from 8/2013 till the taking of the delivery of the vehicle. It is the complainant who never visited the workshop of the OP1 to pay the repair or parking charges etc. Rather, she continued to pursue her claim in the court of law. Complainant also could not refer to any term or condition in the policy which entitle her to lodge claim of parking charges.

                   During the course of proceedings of the complaint, neither any of the parties lead any evidence with regard to the payment of parking charges which could have enabled Commission to return specific findings in this regard. It is the settled law that a relief which is not expressively granted in the order shall be deemed to have been refused. Accordingly, this Commission is of the considered opinion that OP2/JD2 is not liable to pay the parking charges to the complainant.

11.              On 27.02.2018, the complainant/decree holder Smt.Manjit Kaur moved an application for release of amount of Rs.2,38,000/- deposited by National Insurance Company i.e. JD2 with this Commission during the pendency of execution application. It was further stated by the counsel for the complainant/decree holder that he is ready to withdraw the aforesaid amount of Rs.2,38,000/- under protest reserving the right of decree holder to take all the appropriate defences at the final decision. OP1 Lally Motors India filed reply to the said application stating therein that the complainant had not paid the repair charges of Rs.4,91,885/- along with parking charges of Rs.3,75,000/- as on 31.03.2017. So, the amount deposited with this Commission may not be released to the complainant/decree holder till she pays the aforesaid charges and the deposited amount may kindly ordered to be released in favour of the OP1. However, on 27.08.2018, counsel for the JD/OP2 made statement at bar that he does not want to file reply because dispute with regard to disbursal is interse between decree holder and OP1 i.e.Lally Motors only.

12.              We have also heard the counsel for the parties on this application.

13.              The JD1/OP1 has been allegedly demanding the payments of aforesaid amounts since the filing of its reply and has not initiated any legal proceedings against the complainant for the payment of the aforesaid charges. JD1/OP1 has already retained the car since long as a lien to the outstanding expenses. In the present case, there is a specific direction for release of the amount to the complainant in the impugned order dated 26.03.2014. So, it is only the complainant/decree holder, who is entitled for the release of the deposited amount in this Commission on 15.12.205 by the OP2. OP1 is well within its right to avail appropriate legal remedy, if available, under law, against the complainant for recovery of alleged amounts. So, the application for release of the amount of Rs.2,38,800/- filed by the decree holder/complainant is hereby allowed with direction to release the aforesaid amount deposited in the shape of FDR along with accrued interest, if any, to the decree holder/complainant against proper receipt and verification.

14.              As a sequel of the above discussion, the present execution application stands disposed accordingly. Copies of order be supplied to the parties free of costs. Copy of this order be also placed in the Miscellaneous application No.21 of 03.12.2021.

15.              File be indexed and consigned to record room.

16.              Due to rush of work and spread of COVID-19, the case could not be decided within the statutory period.

 

(Monika Bhagat)             (Jaswinder Singh)      (Sanjeev Batra)                        Member                     Member                      President      

Announced in Open Commission.

Dated:02.03.2023.

Gurpreet Sharma