Punjab

Ludhiana

EA/14/161

Dr.Anny paul - Complainant(s)

Versus

Tata Motors Ltd - Opp.Party(s)

28 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                          Execution no. 161 of 19.08.2014

                                                          Date of Decision: 28.04.2015

Dr.Anuj Pal Maini, 33 years, s/o Late Sh.Yash Paul Maini, 15-J, Sarabha Nagar, Ludhiana.

                                                                                      … Applicant

                                             Versus

1.Tata Motors Limited, Managing Director/General Manager, Bombay House, 24, Homi Street Mumbai-400001.

2.Garyson Motors Pvt. Ltd, Managing Director/General Manager, Sherpur Chowk, G.T.Road, Ludhiana.

3.Dada Motors Ltd., Managing Director/General Manager, Savitri Complex-1, G.T.Road, Ludhiana.

4.The Oriental Insurance Company Ltd. Feroze Gandhi Market, Ludhiana.

                                                                                               …Respondents

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

 

Quorum     Sh. R.L. Ahuja, President

                   Sh.Sat Paul Garg, Member.

                   Ms.Babita, Member.

                                                                                            

Present       Dr.Anuj Paul Maini, applicant in person alongwith counsel  Sh.Ajay Chawla, Advocate.

Sh.R.K.Bhandari, Adv. for respondent no.1.

Sh.Rajinder Singh, General Manager M/s Garyson Motors respondent no.2  alongwith counsel for Sh.Gaurav Gupta, Advocate.

Execution application against OP3 and OP4 stand already dismissed as withdrawn.

 

                                                ORDER

R.L. AHUJA, PRESIDENT

1.                This order shall dispose off the application for permission to cross-examine Pritpal Singh Technical ITI filed by the applicant, report of the expert as well as execution application.

2.                Perusal of the record reveals that the complainant Dr.Anuj Paul Maini had purchased Tata Indigo Marina Dicor car manufactured by OP1 through  its dealer i.e.OP2 for Rs.6,10,000/- which was delivered on 13.04.2007 vide invoice dated 18.04.2007 and same was later on registered with registration No.PB-10-BR-4678. The complainant had filed this complaint with this District Forum with the allegations that the aforesaid vehicle had suffered following defects:-

                   (i) The windshield wiper

                   (ii) Door locks were not working properly

                   (iii) AC cooling was insufficient

(iv) Water was dripping inside due to which carpet got soaked with  water.

                   (v) The wires of music system got short circuit quite often

                   (vi) Engine gave high level screeching noise

                   (vii) door glasses were rattling

                   (viii) Diesel was leaking.

The said complaint was allowed by this District Forum on 2.3.2010, vide which, OP1 and OP2 were ordered to replace the car of the complainant with new one within a period of 45 days of receipt of copy of the order. Further, OP2 was ordered to pay compensation of Rs.20,000/- to the complainant for causing harassment to him. Further, both OP1 and OP2 were ordered to pay litigation cost of Rs.2000/- each to the complainant. Against this order, the complainant and OP1 and OP2 had filed appeals which were decided by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh vide order dated 28.2.2012, vide which, the appeal filed by the complainant was partly accepted and the impugned order dated 2.3.2010 under appeal passed by this District Forum was modified to the extent in that place of replacing the vehicle with a new one, respondents no.1 and 2 shall pay Rs.3 lakh jointly and severally to the extent of Rs.1,50,000/- each to the appellant. Respondent no.2 was further directed to handover the bills of repairs and other necessary documents to the appellant and respondent no.4 Insurance Company shall accordingly disburse the amount of insurance directly to the respondent no.2 and respondent no.2 shall handover the vehicle in question to the appellant immediately on receipt of the payment from respondent no.4 Insurance Company. The balance, if any, shall be paid by the appellant to respondent no.2. The litigation costs of Rs.2000/- was enhanced to Rs.10,000/- and respondent no.1 and 2 were liable to pay the same jointly and severally. It was further directed that the compliance of this order shall be made within two months from the receipt of copy of the order. Further, against this order, respondent no.1 Tata Motors had preferred Revision Petition NO.2203 of 2012 before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi which was decided with the observations that Hon’ble National Consumer Disputes Redressal Commission, New Delhi did not find any flaw with the order passed by the Hon’ble State Commission. It was complied with, within 90 days, from the date of receipt of this order. Otherwise, it will carry interest @10% p.a., till its realization. It was also made clear by the order passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 28.1.2014 which is already quoted above. Garyson Motors was directed to release the vehicle in favour of the complainant, without charging any amount from the complainant. The car must be roadworthy and sans defects and the order was ordered to be complied with, within 90 days, of the receipt of the order, otherwise, it will carry further penalty of Rs.1000/- per day, till the car is handed over to the complainant.

3.                The record reveals that in compliance to the order passed by the Hon’ble State Consumer Disputes Redressal Commission, Punjab Chandigarh dated 28.2.2012 as well as Hon’ble National Consumer Disputes Redressal Commission, New Delhi dated 18.2.2014, the OP1 Tata Motors Limited had approached the complainant/applicant through their letter dated 16.04.2014 which was sent by Speed Post alongwith a cheque No.664808 dated 9.4.2014 of Rs.1,55,000/- in favour of complainant/applicant which was not received by him. Similarly, respondent no.2 Garyson Motors Pvt. Ltd., had also approached the complainant/applicant vide their letter dated 15.4.2014 which was sent on both the addresses of complainant/applicant through registered posts calling upon the complainant/applicant that his vehicle is ready for delivery and to collect his vehicle from their workshop at any working day which is evident from the copies of letters as well as postal receipts. The record further reveals that respondent no.2 Garyson Motors Pvt. Ltd had also sent the registered letter to the Hon’ble National Consumer Disputes Redressal Commission, New Delhi dated 12.5.2014, vide which, it was intimated to the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that they had sent registered letter dated 15.4.2013 to the complainant Dr.Anuj Paul Maini at his two available addresses intimating him to collect the car, but the complainant Dr.Anuj Paul Maini till date, has not come forward to collect the car inspite of the service of the letter. It was brought to the notice of this Hon’ble National Consumer Disputes Redressal Commission, New Delhi that in terms of order dated 18.2.2014, the car is lying ready which is roadworthy and sans defect. Perusal of the record further reveals that after receipt of the copy of the order, the complainant/applicant did not come forward for the compliance of the order on his part to take delivery of the vehicle, if the same is roadworthy and sans defect and further to receive the amount of compensation from respondent no.1 and 2. Perusal of the record further reveals that complainant/applicant has not placed on record any copy of letter, representation or any other documents, from which, it could be presumed that the complainant/applicant has ever come forward to comply with the order on his part except to file the present execution application which has been filed by him on 19.8.2014.

4.                 Perusal of the execution application reveals that the complainant/applicant has not averred even a single word regarding receipt of registered letters sent by respondents no.1 and 2 and further, the execution application is silent qua the fact that the complainant/applicant ever approached respondent no.1 and 2 to pay the compensation of Rs.3 lakh and to take the delivery of the vehicle. The record further reveals that respondent no.1 Tata Motors Limited and respondent no.2 Garyson Motors Pvt. Ltd. after putting their appearance in this execution application and respondent no.1 had produced the cheque bearing No.157725 dated 25.11.2014 amounting to Rs.1,55,000/- drawn on HDFC Bank in favour of the complainant/applicant Dr.Anuj Paul Maini in compliance of the order of Hon’ble National Commission and respondent no.2 had also produced original demand draft bearing No.874748 dated 8.12.2014 of Rs.1,55,000/- drawn on PNB, Model Town, Ludhiana and had given no objections, in case, the aforesaid demand draft shall be given to the complainant/applicant in compliance to the order passed by the Hon’ble State Commission and Hon’ble National Commission. The complainant/applicant had received the aforesaid cheque and demand draft from this District Forum without any objection. So, first part of the order has been duly complied with.

5.                Second part of the order of the Hon’ble National Commission was qua the delivery of the vehicle, vide which, it was ordered vide order dated 18.2.2014 that respondent no.2 Garyson Motors was directed to release the vehicle in favour o the complainant/applicant without charging any amount from him and the car must be roadworthy and sans defect and the order was to be complied with within 90 days of the receipt of the order, otherwise, it will carry further penalty of Rs.1000/- per day, till the car is handed over to the complainant/applicant. Perusal of the record reveals that respondent no.2 Garryson Motors Pvt. Ltd. approached complainant/applicant to take delivery of the vehicle as the same is roadworthy and sans defect vide their registered letter dated 15.4.2014. But the complainant/applicant did not come forward to take the delivery of the vehicle due to the reasons best known to him. Even due intimation regarding this effect was also given by the respondent no.2 to the Hon’ble National Consumer Disputes Redressal Commission, New Delhi vide registered letter dated 12.5.2014. It is also a proved fact on record that even after receipt of the copy of order and copy of receipt of letters dated 15.4.2014 and 16.4.2014 sent by the respondent no.1 and 2, the complainant did not come forward in order to receive the amount of compensation and to take delivery of the vehicle after the same roadworthy and sans defect nor the complainant/applicant wrote any letter to respondent no.2 intimating them qua the fact that he is interested to take delivery of the vehicle in compliance to the order passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi except filing of the present execution application. Even perusal of this execution application reveals that complainant/applicant has not written even a single word that he has approached the respondent no.2 to take delivery of the vehicle and the same is not roadworthy and sans defect.

6.                During the course of execution proceedings, complainant/applicant filed his affidavit, in which, he has deposed in para no.1 that the complainant complying with the order visited the workshop of the Garyson Motors to collect his car on 11 August, 2015, since the orders were received on 11 May 2015, but the car was in pathetic condition and was neither roadworthy nor sans defect. He has further deposed that after inspecting the vehicle, pointed out following defects in the vehicle:-

a)Woobling of tyres

b)Screeching noise of engine

c)Left back door beading was missing

d)All Tyres were of different make and size

e)The new alloys and tyres given by the complainant purchased vide invoice number 0583/0809 dated 24.6.2008 issued by authoserveludhiana and invoice number 0374/0809 dated 24.6.2008 issued by bakshisons Ludhiana were missing.

f)The battery of the car was a old and local make and not installed with clamps

g)The glass of left headlight was cracked

h)The carpet of the car were untidy and spilled with oil

i)The left front seatbelt was torned

j)The glass pieces of the windscreen were still present on the dashboard indicating that the car had never been serviced.

k)The logos of the car which are pasted on the boot door were missing.

7.                Perusal of the record reveals that all the defects, which the complainant/applicant had raised in his affidavit were not raised in his complaint and furthermore, he has not placed on record any such documents, from which, it could be presumed that the complainant/applicant has ever visited the workshop of the respondent no.2 on 11.8.2015 in order to take delivery of the vehicle. Rather, he had wrongly mentioned the date as 11.8.2015. On the other hand, Sh.Rajinder Singh, General Manager of respondent no.2 Garyson Motors has furnished his affidavit, in which, he has specifically deposed that vehicle is lying ready for delivery to the complainant in terms of order dated 18.2.2014 passed by the Hon’ble National Commission since April 2014 and the vehicle is roadworthy and sans defect. There is no following defects in the vehicle:-

                   (i) The windshield wiper

                   (ii) Door locks were not working properly

                   (iii) AC cooling was insufficient

(iv) Water was dripping inside due to which carpet got  soaked with water.

                   (v) The wires of music system got short circuit quite often

                   (vi) Engine gave high level screeching noise

                   (vii) door glasses were rattling

                   (viii) Diesel was leaking.

Further, he has deposed that complainant is wrongly claiming Rs.1000/- per day. The company has duly complied with the order as M/s Garyson Motors Pvt. Ltd. has sent the letter dated 15.4.2014 to the complainant for taking delivery of the vehicle as per the order passed by the Hon’ble National Commission. There was no complaint of tyre or alloys or battery etc. in the complaint or appear or the order. This false plea has been raised for the first time in the execution and the same is not tenable and are afterthought. There is no such defect in the car as stated by the complainant in his reply and statements. The company has duly complied with the order passed by the Hon’ble National Commission. Thereafter, another additional affidavit had filed by Sh.Rajinder Singh on 22.5.2015, vide which, he had again reiterated that the vehicle in question is roadworthy and sans defect and Ms/ Garyson Motors Pvt. Ltd. has duly complied with the order dated 18.2.2015 passed by the Hon’ble National Commission. The complainant is intentionally not taking the delivery of the car under the guise of order passed by Hon’ble National Commission with regard to the penalty of Rs.1000/- per day. There is no default on the part of M/s Garyson Motors Pvt. Ltd with regard to the handing over the vehicle to the complainant. No such penalty of Rs.1000/- per day could be imposed on the company as the company has always complied with the order. The vehicle was immediately produced before this Hon’ble Forum and the same was duly inspected by the complainant and his Mechanic. The Mechanic of the complainant was satisfied with the functioning of the car and for the reasons best known to the complainant, the complainant did not receive the car and pointed out false alleged defects which were not there.

8.                Since, both the parties are filed their affidavits and counter affidavits and respondent no.2 Garyson Motors Pvt. Ltd. had also filed an application for appointment of Local Commissioner and reply to the said application was filed and after considering the rival contention of learned counsel for the parties, vide detailed order dated 24.4.2015, Sh.Pritpal Singh, Mechanic Swani Motors Pvt. Ltd.,Dhandari Kalan, who is working with this concern and Swani Motors is authorized dealer of Maruti Cars, was appointed as Local Commissioner with the directions to inspect the car produced by the respondent no.2 by taking test drive of the vehicle in the presence of the parties and to take the vehicle for inspection and report about the roadworthiness, sans defect and proper condition of the vehicle. After taking test drive by the aforesaid Mechanic in the presence of the parties and after his thorough inspection of the vehicle, submitted his detailed report dated 27.7.2014 alongwith photographs, vide which, he has reported that  test drive was taken in the presence of the parties and the vehicle is an aged vehicle and is roadworthiness and there are no alleged defect in the vehicle as pointed out in the order and even as on date, there is no defect in the vehicle.

9.                Thereafter, today complainant/applicant Dr.Anuj Paul Maini has filed an application for permission to cross-examine Pritpal Singh Technical ITI with the averments that abovesaid Pritpal Singh Tech, ITI has submitted a report with photographs. The said report is totally false and against the actual and factual position of the vehicle. In the report, he has stated that the vehicle is roadworthy and there is no defect in the vehicle. The report is filed to harass the complainant. Abovesaid Pritpal Singh has concealed the actual facts and has submitted totally false report, thus it is necessary for the cross-examination of said Pritpal Singh about the report specifically pointwise. In reply to the said application, it has been submitted by M/s Garyson Motors Pvt. Ltd. in the preliminary objections that the present application filed by the complainant/decree holder is not maintainable and is liable to be dismissed. There is no provision to cross-examine expert in the application u/s 27 of the CPA. The report of the Technical Expert is perse-admissible, if it is does not suffer from any infirmity and illegality and the Forum has rightly appointed the expert to determine whether the vehicle is roadworthy and without any defect. The Local Commissioner/Technical Expert has been appointed by the court for determining whether the vehicle is roadworthy and sans defect. The vehicle was thoroughly inspected by the said expert Pritpal Singh in the presence of both the parties for hours together. For giving effective report, even the said vehicle was taken by Pritpal Singh alongwith him for complete one day for detailed inspection. The complainant is intentionally not taking the delivery of the car which is roadworthy and sans defect. The OP has duly complied with the orders of Hon’ble National Commission and Hon’ble State Commission. The vehicle has been brought to the court premises number of times but the complainant did not take the delivery of on the false pretext. The OP has today also brought the vehicle for the delivery. The complainant cannot be allowed to enlarge the scope of the application u/s 27 of the Act. The application is neither verified nor supported by an affidavit as such, the same is liable to be dismissed on this score alone. Reply on facts, all the allegations are denied and made prayer for dismissal of application.

10               Since, it is an execution proceeding and there is no provision under Section 25 and 27 of the Consumer Protection Act, 1986 to cross-examine the expert. The record reveals that complainant/ applicant has neither filed any objection to the report of the Local Commissioner nor has filed any affidavit that test drive was not taken in the presence of the parties. So, it appears from the proceedings as well as contents of the application that the complainant/applicant has only adopted the delaying tactics by filing this application in order to delay the proceedings and not interested to take the delivery of the vehicle which is now roadworthy condition and sans defect as per the report of Local Commissioner and as such, application for permission to cross-examine Pritpal Singh filed by the applicant appears to be devoid of any merit and the same is hereby dismissed.

11.              Since, it is proved on record from the report of the Local Commissioner that vehicle is roadworthy condition and sans defect and respondent no.2 Garyson Motors Pvt. Ltd. has already approached many times to the complainant/applicant in order to take the delivery of the vehicle by way of sending registered letter dated 15.4.2014 and also during the pendency of the execution proceedings. However, all the times, complainant/applicant appear to be reluctant to take delivery of the vehicle on one or the other pretext or by raising new defects which were not taken by the complainant in his complaint and also before the appeals filed before the Hon’ble State Commission and in Revision Petition before the Hon’ble National Commission and before the revision petition filed before the different Forum. Rather, it appears that respondents have complied with the order of the Hon’ble State Commission dated 28.2.2012 and Hon’ble National Commission dated 18.2.2014 and 27.3.2015 and it is the complainant/applicant himself, who is not interested to take the delivery of the vehicle from respondent no.2 Garyson Motors Pvt. Ltd. Complainant/applicant himself is not interested to take delivery of the vehicle and delayed the delivery of vehicle by his own act and conduct in order to get a handsome amount of penalty @Rs.1000/- per day from respondent no.2, for which, the complainant/applicant is not found entitled to.

12.              In view of the above discussion, we hereby direct the complainant/applicant to take the delivery of the vehicle from respondent no.2 Garyson Motors Pvt. Ltd and direct the respondent no.2 Garyson Motors Pvt. Ltd. to handover the vehicle to the complainant/applicant Dr.Anuj Paul Maini against proper receipt and verification. Order of Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh dated 28.2.2012 and order of Hon’ble National Consumer Disputes Redressal Commission, New Delhi dated 18.2.2014 has been complied with and further, no action is required. As such, execution application is disposed off accordingly. Copy of order be supplied to the parties free of costs. File be completed in all respect and be consigned.

 

    (Babita)                      (Sat Paul Garg)              (R.L.Ahuja)

    Member                     Member                         President

Announced in Open Forum

Dated:28.04.2015

Gurpreet Sharma.