Chandigarh

DF-II

EA/123/2017

Jai Kishan - Complainant(s)

Versus

Mahindra & mahindra - Opp.Party(s)

Adv. Arvind Bansal

08 Dec 2017

ORDER

 

 

District Consumer Disputes Redressal Forum-II,   U.T., Chandigarh

Execution Application No.123 OF 2017 IN CONSUMER COMPLAINT NO.347 OF  2009

JAI KISHAN     VS.     MAHINDRA & MAHINDRA & ORS.

BEFORE:

HON’BLE MR.RAJAN DEWAN PRESIDENT                    HON’BLE MRS.PRITI MALHOTRA    MEMBER                    HON’BLE MR. RAVINDER SINGH     MEMBER

For DH/Complainant      :         Sh.Arvind Bansal, Adv. for complainant. For JDs/OPs                   :         Sh.Krishan Singla, Advocate

Dated : 8th day of December, 2017

O R D E R

 

PER PRITI MALHOTRA, MEMBER

         The above Complaint Case NO.347 of 2009 filed by the complainant was allowed by this Forum vide order dated 25.2.2010 with following directions:-

“17]      Keeping in view the foregoings, we allow this complaint in favour of the Complainant and against the OP Nos. 1 to 3 and pass the following order.

18]       OP Nos. 1 to 3 shall jointly and severally make the following payments:

(a)        OP Nos. 1 to 3 shall, jointly and severally, pay a sum of Rs.50,000/- to the Complainant for the financial loss suffered by him, on account of sale of the 2007 model of Scorpio vehicle, representing it as a 2008 model, to him.

(b)        OP Nos. 1 to 3 shall, jointly and severally, pay Rs.20,000/- as compensation for causing physical harassment, mental agony and pain, on account of supply of a 2007 model vehicle passing off as 2008 model to the Complainant.

(c)        To pay litigation cost of Rs.5,000/- to the Complainant.

(d)        The OP Nos. 1 to 3 shall also, jointly and severally, pay a sum of Rs.2.00 lakh as punitive damages u/s 14(d) of the Consumer Protection Act, 1986, for indulging in a gross unfair trade practice of selling a 2007 model of the Scorpio vehicle, representing it as 2008 model. This amount shall be paid to/deposited with the State Legal Services Authority, U.T. Chandigarh, through its Member Secretary, by the OPs.

 

18]       The aforesaid order be complied with by the OP No.1 to 3, jointly and severally, within a period of 30 days from the receipt of its certified copy, failing which the OP No. 1 to 3 shall pay the sum of  Rs.2.70 lakh along with interest @18% per annum from the date of filing of the present complaint i.e. 13.3.2009, till the date of realization, besides paying the cost of litigation of Rs.5,000/-.”

 

2]       Thereafter, M/s Swami Automobiles Pvt. Ltd. (OP NO.3), Mahindra & Mahindra Limited & Anr. (OPs NO.1, 2 & 4) and the complainant filed separate Appeals Nos.108/2010, 154/2010 and 169/2010 respectively before the Hon’ble State Commission, UT, Chandigarh whereby the order dated 25.2.2010 passed this Forum was challenged.  All the said appeals were disposed of by the Hon’ble State Commission, UT, Chandigarh by common order dated 28.9.2010 thereby modifying the order passed by this Forum dated 25.2.2010, with following directions:-

“10.     The learned District Forum had awarded a sum of Rs.50,000/- to the complainant on account of financial loss suffered by him because of the sale of old model of 2007 instead of 2008 as claimed in the sale letter dated 22.2.2008. In this regard, we do not find any justification for enhancement.

However, compensation of Rs.20,000/- awarded on account of causing physical harassment and mental agony appears to be inadequate in the given facts and circumstances of the case. Here, we feel that if the same is enhanced to Rs.50,000/- that would meet the ends of justice. So we order accordingly.

11.       Now adverting to the punitive damages awarded to the tune of Rs.2 lacs under Section 14(d) of the Consumer Protection Act,1986 in favour of the State Legal Services Authority, U.T. Chandigarh, in this regard, suffice it to say that complainant could not make out any exceptional case for imposing of such punitive damages as awarded by the District Forum. So, this amount of Rs.2 lacs awarded under Section 14(d) of the Act is hereby set aside.

12.       As discussed above, it would be the dealer M/s Swami Automobiles (P) Ltd. only who shall be entirely liable to pay the total sum of Rs.one lac to the complainant together with litigation costs of Rs.5000/- within one month from the date copy of the order is received, failing which it would be liable to pay the said amount alongwith penal interest @ 12% from the date of filing the appeal till its actual realization.

13.       In the result, impugned order dated 25.2.2010 is modified as indicated above. Accordingly all the three appeals are disposed of in the aforesaid manner, leaving the parties to bear their own costs.”

3]       By way of this execution application, the complainant sought compliance of order dated 28.9.2010 passed by the Hon’ble State Commission, UT, Chandigarh, the operative part of which has been reproduced above.

 

4]       From the order dated 28.9.2010 passed by the Hon’ble State Commission, UT, Chandigarh in Appeal Nos.108/2010, 154/2010 and 169/2010 respectively, it is clear that the Opposite Party No.3 i.e. M/s M/s Swami Automobiles (P) Ltd. was to pay the total sum of Rs.one lac to the complainant together with litigation costs of Rs.5000/- within one month from the date copy of the order is received, failing which it would be liable to pay the said amount alongwith penal interest @ 12% from the date of filing the appeal till its actual realization. 

5]       The perusal of the record reveals that the OP No.3/M/s Swami Automobiles Ltd. vide Miscellaneous Application No.48 of 2010 deposited an amount of Rs.1,37,500/- with this Forum in pursuance of the order dated 19.3.2010 of the Hon’ble State Commission and on the said Misc. Application, the following order dated 8.4.2010 was passed by this Forum:-

“This order will dispose of the application moved by OP-3/applicant praying therein that he be permitted to deposit a sum of Rs.1,37,000/- as per the directions given by the Hon’ble State Commission.

Vide order dated 19.03.2010 of the Hon’ble State Commission, execution of the impugned order has been stayed subject to deposit of 50% of the total amount awarded by this Forum within 10 days.  The certified copy of the order was received by the OP on 23.03.2010. The application for the deposit of the 50% amount vide Pay Order bearing No.001844, dated 29.03.2010 for Rs.1,37,500/- was moved by the OP on 29.03.2010 i.e. within 10 days.

So the application is allowed and the applicant is permitted to deposit the amount of Rs.1,37,500/-. So the Pay Order bearing No.001844, dated 29.03.2010 for Rs.1,37,500/- be sent to District Forum-I to deposit the same in the relevant account as per the direction of the Hon’ble State Commission. File be consigned to record room.”

 

6]       From the above, it is evident that Opposite Party NO.3 had already deposited an amount of Rs.1,37,500/- with this Forum, against the awarded amount of Rs.1,05,000/- granted by the Hon’ble State Commission, UT, Chandigarh vide order dated 28.9.2010. Since, the final decreetal amount of Rs.1,05,000/- had already stands deposited with this Forum on behalf of OP NO.3 well before the expiry of 30 days from the date of order dated 28.9.2010 of Hon’ble State Commission, UT, Chandigarh, it certainly seized to carry any penal interest. Moreover, the complainant was one of the main party/respondent in the appeals as well as appellant before the Hon’ble State Commission, UT, Chandigarh in Appeal Nos.108/2010, 154/2010 and 169/2010 respectively and he ought to know about the deposit of the amount by Opposite Party NO.3 with this Forum as per orders of Hon’ble State Commission, UT, Chandigarh. More so, the ignorance of the complainant about said fact is no excuse, especially when he was party/appellant in the appeals, rather a clever act to gain more money on account of penal interest.

7]       From the above, it is clear that the liability of OP No.3 is to pay a total sum of Rs.1,05,000/- only to the complainant, against deposited amount of Rs.1,37,500/-. Therefore, The Office is directed to release an amount of Rs.1,05,000/- with accrued interest thereon in favour of the complainant and the balance amount be refunded to Opposite Party No.3- M/s Swami Automobiles Pvt. Ltd.

                

8]       The present petition under Section 27 of the Consumer Protection Act, 1986 stands disposed of in above terms. 

         Certified copy of this order be communicated to the parties free of cost. After compliance, file be consigned.

 

8^th December, 2017                                           

(RAJAN DEWAN)

PRESIDENT

 

 

 (PRITI MALHOTRA)

MEMBER

 

 

(RAVINDER SINGH)

MEMBER.