Delhi

East Delhi

EA/48/2016

RAJESH TYAGI - Complainant(s)

Versus

TATA MOTORS - Opp.Party(s)

31 Oct 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

E.P. No.48/2016

 

1.	Rajesh Tyagi R/o 41, Chitrakoot, East of Arjun Nagar, CBD, Delhi	....Decree Holder
Versus
1.	Tata Motors Jivan Tara Building, Sansad Marg, New Delhi	... Judgment Debtor 1.
2.	Him Motors Patparganj Industrial Area, Delhi (East)	... Judgment Debtor 2.

 

 

Date of Institution: 03.06.2016

Judgment Reserved on: 20.10.2022

Judgment Passed on: 31.10.2022

                  

QUORUM:

Sh. S.S. Malhotra (President)

Ms. Ritu Garodia (Member)

Sh. Ravi Kumar (Member)

 

Order By: Shri S.S. Malhotra (President)

 

 

 

ORDER

1. By this order I shall dispose off the Execution Petition filed by the DH on 06.04.2016. which is based on the Order passed by the Hon’ble State Commission in Appeal No. A-711/2004, and not on the basis of the subsequent orders passed by the Hon’ble NCDRC or by Hon’ble Supreme Court.
2. Before coming to the facts of the Execution Petition, it is necessary to mention, that initially the Complainant had filed the Complaint No.965/2003 before this District Forum which was dismissed vide Order dated 10.08.2004.  However, the Complainant filed an Appeal against the Order of the District Forum in the Hon’ble State Commission being Appeal No. A-711/2004 and the said Appeal was allowed to certain extent vide Order dated 19.11.2007 and subsequently since there was some typographical error in Para 12 of the Order of the Hon’ble State Commission dated 19.11.2007, the Order was modified vide Order dated 11.03.2008.
3. The OP then preferred an appeal Revision Petition No.1030/2008 before the Hon’ble National Consumer Dispute Redressal Commission against the order of Hon’ble State Commission and vide Order dated 03.12.2013, the Hon’ble National Commission modified the Order of Hon’ble State Commission which reads as under:

Para 10 of order dated 3.12.2013

“Based on the discussion above, we find that it shall be in the fitness of things if the petitioner and respondent no. 2 Dealer who has chosen not to put appearance before this Commission, jointly make an endeavour to remove the defects in the vehicle and give a clear-cut certificate signed by a senior officer of the manufacturer, not below the rank of a General Manager, declaring in categorical terms that the vehicle is free from any defects. We, therefore, order accordingly and manufacturer and the dealer are permitted to carry out the necessary repairs in the vehicle, make it defect-free and hand it over to the consumer along with the certificate as mentioned above within a period of three months from today.”

4. The matter then was fixed for compliance by the Hon’ble NCDRC for 21.03.2014. The Complainant (DH) Shri Rajesh Tyagi then again filed Review Petition against the Order of the Hon’ble National Commission itself and the said Review Petition being Review Petition no. 16/2014 was dismissed vide Order dated 24.01.2014 which reads as under:

Para 3 of order 24.1.2014

“It is clear from the above that the manufacturer and the dealer have been given the opportunity to remove the defects in the vehicle, make it defect-free and hand it over to the review petitioner-alongwith a certificate declaring in categorical terms that the vehicle is free from any defect. The case has also been listed for compliance on 21.03.2014. We do not, find any justification to amend this order on any ground. The review petition is, therefore, ordered to be dismissed.”

5. The matter was listed for compliance on 21.03.2014 and since no compliance was made on 21.03.2014 the matter was again taken up on 24.04.2014 and vide Order dated 24.04.2014 the Hon’ble National Commission Ordered as follows:

“In compliance of order dated 21-03-2014, petitioner has placed letter on record, and reply given by Respondent No. 1 has also been placed on record. As this Commission decided revision petition by order dated 03-12-2013 finally and review petition filed by the complainant was also disposed of by order dated 24th January, 2014, order dated 03-12-2013 has become final and compliance of this order is to be pursued before District Forum before which complaint was filed. We need not to see whether compliance of final order has been made by the parties or not. In such circumstances, complainant is directed to approach to the Executing Court for compliance of our order dated 03-12-2013.

Parties are at liberty to take copies of the letter and reply filed by the parties here and place them before District Forum while moving execution application.

Record may be consigned.”

6. The Complainant (DH) thereafter preferred SLP i.e. SLP No. 26540/2014 before the Hon’ble Supreme Court also and vide Order dated 29.8.2014 the Hon’ble Supreme Court passed the following Order:

 ‘Delay condoned. The Special Leave Petition are dismissed’.

7. In the Execution Petition no.48/2016, the Complainant (DH) has stated in that “an opportunity was granted by Hon'ble NCDRC to the Judgement Debtor No.1 Tata Motors, who was sole Revisionist before it, to rectify the defect in the Car and file an affidavit to that effect, which is not done by the Judgement debtor till date.” And further stated that failing this, now Rs. 5,24,471/- plus Rs. 50,000/- as compensation as directed by the Hon'ble State Commission is to be recovered from the Judgement Debtor.
8. The JD has filed reply to the Execution Petition taking preliminary objection that the present Execution is not maintainable as per law as the final order/judgment was passed by the Hon’ble National Commission in R.P. No.1030/2008  way back on 03.12.2013, wherein the order of Hon’ble SCDRC was modified. The DH was not satisfied with the Order/Judgment passed by the Hon’ble National Commission, and then he preferred a Review Petition against the said Order, which review petition was dismissed vide Order dated 24.01.2014 by Hon’ble NCDRC.  The DH then again made a final attempt to have the order set-a-side in respect of the repair of the vehicle by challenging the Order dated 03.12.2013, and 24.01.2014 before the Hon’ble Supreme Court by filing SLP No.26540/2014 which was also dismissed and as such the proceedings which started vide complaint No. 965/2003 initiated by Complainant (DH) before the District Forum were culminated into final Order/Judgment dated 03.12.2013 passed by the Hon’ble National Commission which was affirmed by the Hon’ble Supreme Court and as such all the orders/judgment passed by the District Forum or Hon’ble State Commission stands merged/culminated/attained finality vide judgment dated 03.12.2013 of the Hon’ble National Commission and order dated 29.8.2014 of Hon’ble Supreme Court. The present Execution is not maintainable as it is settled law that where the specific provision is given in the statute for appropriate relief then nobody can take the help of other provision of law.  
9. Rejoinder was filed by the complainant by giving reply to the preliminary objections that present execution is maintainable and contents of reply are denied and it is submitted that the Order of the Hon’ble National Commission was not complied with by the JD nor the JD was ready to execute the Order dated 03.12.2013 and it is further submitted that DH had taken the vehicle to the workshop of the Judgment Debtor but the same was not located there. It is also denied that the Judgment Debtor above told the DH that they are ready to repair the vehicle and since the original location of the JD No. 2 has been shifted, the DH could not hand over the vehicle to any third party to this litigation. The DH was to handover the vehicle to the JD who after due repairs in accordance with the directions of the Hon’ble National Commission  had to return the same to DH which was not done as it was the JD who had to receive the vehicle and hand over back to DH after repairs and as such the execution is maintainable. 
10. It is further submitted that the Orders of the Hon’ble National Commission has not set-a-side the directions of the Hon’ble State Commission, rather have only given an additional opportunity to the JD to set right the defect in the vehicle and failing this it is implied that JD will be under liability to pay the decretal amount to the DH.  It is clear from the holistic reading and very purport of the judgment and order passed by the Hon’ble National Commission that it has upheld the judgment and Order passed by the Hon’ble State Commission instead of setting aside and while doing so the Hon’ble National Commission has only given an additional opportunity to the JD to set right the defect in the vehicle. DH has also submitted in the additional submission that JD2 has not come forward till date and as such Decree as such is executable against JD2 as it is.  Rest of the facts are reiterated and it is prayed that Execution is maintainable. 
11. The Commission has heard the arguments and perused the record. 
12. Basically, the execution which is pending before this Commission is with respect to the Order dated 03.12.2013 as passed by the Hon’ble NCDRC read with Order dated 21.03.2014 and 24.04.2014 passed by the Hon’ble NCDRC.  The contention of the complainant/DH is that the Order has not been complied with by the OP and therefore, now Rs. 5,24,471/- plus Rs. 50,000/- as compensation be given to him. How and where from this inference is being withdrawn by the complainant/DH has not been explained at all. If we refer the order of the Hon’ble National Commission which has been reproduced as here in above, it nowhere states any fact, which indicate the OP/JD has to do something more than the Order passed by the Hon’ble National Commission.  The only Order which the Hon’ble NCDRC has passed is w.r.t. giving the direction to the Dealer to carry out the necessary repairs in the vehicle, make it defect free and hand it over to the complainant (DH) along with a certificate as mentioned in the order within a period of three months. Three months expired, the Order was not complied with. The complainant filed another Review Petition i.e. review application No. 16/2014 and after hearing it was listed for 21.03.2014 and matter was again listed on 24.04.2014 and the Order dated 24.04.2014 has already been reproduced herein above and is being reproduced here again:

“In compliance of order dated 21-03-2014, petitioner has placed letter on record and reply given by Respondent No. 1 has also been placed on record. As this Commission decided revision petition by order dated 03-12-2013 finally and review petition filed by the complainant was also disposed of by order dated 24th January, 2014, order dated 03-12-2013 has become final and compliance of this order is to be pursued before District Forum before which complaint was filed. We need not to see whether compliance of final order has been made by the parties or not. In such circumstances, complainant is directed to approach to the Executing Court for compliance of our order dated 03-12-2013.

Parties are at liberty to take copies of the letter and reply filed by the parties here and place them before District Forum while moving execution application.

Record may be consigned.”

 

13. Therefore the Order which was passed by the Hon’ble State Commission got culminated/merged in the Order dated 24.04.2014 and the only part which was to be complied with by the JD(OP) is that it had to repair the vehicle and a certificate was to be given by an officer not below the rank of General Manager declaring in categorical term that the vehicle is free from any defect. No doubt this Order was not complied within by the JD. Initially within the period as directed by the Hon’ble National Commission but definitely this Order has been subsequently complied with on 25.07.2018 and the Order of this forum i.e. Ld.  Pre-deccesser is reproduced here below:

 

Date; 25.07.2018

Present:               Counsel for the Complainant

                            Counsel for OP/JD

Certificate as ordered by Hon’ble National Commission filed by JD.  Same is given to DH. 

Be listed for further proceedings on 20.08.2018. 

14. The matter before this District Forum continued for some settlement but ultimately no settlement was filed/ brought to the notice of this Commission. It is a fact that the Complainant also preferred an SLP before the Hon’ble Supreme Court, being SLP No. 26540/2014 against the Order of the Hon’ble NCDRC which was also dismissed.
15. The contention of the DH is that the Order of Hon’ble State Commission does not and would not culminate in the Order of Hon’ble National Commission is not well found and contention for Counsel for JD as per reply is well found. Once an Order has been passed by the Appellate Authority i.e. Hon’ble NCDRC and once the execution of that order has been done, this Commission is of the opinion that nothing survives in the present Execution Petition.

Present Execution Petition is accordingly dismissed. 

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room. 

Announced on 31.10.2022