05-10-2015 – Due to long and uncertain period of absence of the Members, single member bench of President is functioning in their absence, in view of the order of Hon’ble National Commission in Revision Petition No. 4434 of 2014, in the matter of Mr. Netaji Surrendra Mohan Nayyar -vs- Citibank; and the judgement passed by Hon’ble Kerala High Court in the W.P. (C) No. 30939 of 2010 (N) P.K. Jose -vs- M. Aby & ors.
- Heard the parties.
- This revision petition has been filed on behalf of the Dr. Hr.-petitioner against the orders dated 12.12.2011 and 24.12.2011 passed by learned District Forum, Deoghar in Execution Case No. 27/2009 ( arising out of Consumer Case No. 83/2008).
- This revision petition was sent by post through the lawyer with a letter dated 29.01.2015 with a prayer to condone the delay on the grounds mentioned in the letter.
- In the said letter, it is said that a revision was filed through registered post but it was misplaced. However, on account of serious illness of the petitioner, the copy of the revision application was being forwarded again by post.
- No satisfactory grounds have been made out for condoning the delay of about three years. The petitioner should have been vigilant. If he sent the revision petition by the registered post in 2012, he woke up and made enquiries through RTI in September, 2014.
- However, in the interest of justice, the said delay is condoned.
- The background of this case in short is as follows.
- The complaint case in question was disposed of by order dated 4.6.2009 directing the Jt. Dr.- O.Ps.- (the Bank for short) to return the tempo-vehicle in same condition or give a new tempo of same make and model and thereafter, the complainant would pay the balance instalment. The Bank was also ordered to pay Rs. 25,000/- as compensation and Rs. 3000/ as litigation cost.
- The Bank preferred an appeal before this Commission being F.A. No. 302/2009 which was disposed of on 23.12.2010 with the following order;
“There for we modify the impugned order as follows. The appellant is directed to return the said vehicle in same condition to the respondent and then claim the remaining dues in accordance with law, if the vehicle has been auction sold all dues remaining against the respondent shall be deemed to have been set off against the proceeds of sale and no further demand be raised. Thus the appeal is partly allowed, but no order as to cost.”
- It appears that, thereafter the Dr. Hr. filed the present Execution Case.
In the impugned order dated 12.12.2011, the learned District Forum, interalia observed that the Dr. Hr. deliberately suppressed the fact about disposal of the said F.A. No. 302/2009 on 23.12.2010. It was further noted that the Jt. Dr. – Bank said that it was ready to return the vehicle in the same condition, but Dr. Hr. was not coming to take back the vehicle, inspite of repeated requests. The Dr. Hr. could not produce anything to show that he went to take the vehicle. It was further noted that the conduct of the Dr. Hr. appears to be not correct as per the order dated 7.6.2011.
In the circumstances, the Bank was directed to bring the vehicle before the Forum on 24.12.2011 in running condition with an Automobile expert. The Dr. Hr. was directed to come along with an Automobile expert for taking the vehicle after inspection.
- Thereafter, on 24.12.2011 the Dr. Hr. appeared with his mechanic - Mr. Pradip Mistri and the Bank appeared with Mr. Subhankar Kumar Roy an Automobile- Engineer, diploma holder, specialist for three wheeler vehicle, who certified as follows;
“Vehicle is in well condition to run in the road properly, the engine condition is well, engine oil, oilfiltures all are in good working condition. The running wheels are in well condition including the tyres, tubes, axles.
The chassis, body and hood all are in running condition. All control cables, light hom are in working condition.”
- He produced copies of diploma of Institution of Motor Industries, Chennai and other diploma.
- On the other hand, the mechanic of the Dr. Hr. submitted a report that there was an expenses of Rs. 55,000/- in bringing the vehicle in the condition when it was seized, as the condition has become quite bad and it was not in running condition. He produced a certificate of one day training.
- The learned District Forum observed that the report submitted by Mr. Pradip Mistry was written by some other person and he simply signed it. Moreover, Mr. S.K. Roy appeared to be more trained and experienced according to whom the vehicle was in running condition. The learned District Forum also observed that the vehicle appeared to be in good condition.
But, the Dr. Hr. was not agreeable to take back the vehicle and therefore the Bank was directed to take it back.
- The Bank filed an application for directing the Dr. Hr. to pay Rs. 75,733/- along with interest, on which, the learned District Forum observed that as the case was disposed of by this Commission, therefore the parties should obtain appropriate orders from this Commission.
- Mr. Niranjan Kumar, learned counsel appearing for the petitioner submitted that the report of mechanic of the Dr. Hr. Mr. Pradip Mistri was correct and the report of Mr. S.K. Roy, the Automobile Engineer, brought by the Bank is wrong.
- The learned District Forum has given good reasons for accepting the report of Mr. S.K. Roy, the Automobile Engineer brought on behalf of the Bank.
- The District Forum, was also satisfied on looking to the vehicle that it was in good condition.
It is not possible to interfere with the said findings of fact arrived at by the learned District Forum.
- Thus, in my opinion, no grounds have been made out for interference with the impugned orders.
- In the facts and circumstances of this case, the following order is passed.
The Bank is directed to produce the vehicle in question in same condition when it was produced on 24.12.2011, before the learned District Forum at 11 a.m. on 05.11. 2015, along with three calculations of dues. Calculation ‘A’ will be the dues up to 5.11.2015. Calculation ‘B’ will be the dues up to 23.12.2010 (the date of the judgement of this Commission in F.A. No. 302/2009). Calculation ‘C’ will be the dues- ‘A’ minus ‘B’. If the Dr. Hr.- petitioner takes back the vehicle on 05.11.2015, the Bank will fix installments of calculation ‘C’ which will be paid regularly, failing which, the Bank will at liberty to take necessary action against the Dr. Hr.-petitioner in accordance with law.
However, if the Dr. Hr.- petitioner fails/ refuses to take back the vehicle, the Bank will sell the vehicle in auction after notice to the Dr. Hr.-petitioner and after adjusting the sale proceed with the dues calculated as ‘A’ will proceed to realize the balance from the Dr. Hr.-petitioner in accordance with law.
With these observations and directions, this revision petition stands disposed off.
Issue free copy of this order to all concerned for information and needful.
Ranchi,
Dated:- 05-10-2015
