Final Order / Judgement

(Passed on 07/12/2022)

Passed by Shri Atul D. Alsi, Hon’ble President 

1. The complainant has filed a present Execution Proceeding under Section 72 of Consumer Protection Act, 2019 for the execution of judgment and order passed in original complaint case bearing No. 5/2012 between the complainant Harpreetsingh Makode Vs. Tata Motors and Jaika Motors on 20/09/2014 holding that the Ops shall replace the engine of complainant’s truck and deliver the vehicle in running condition within 45 days along with compensation for mental torture of Rs. 10,000/- and cost of litigation of Rs. 5,000/-. The OP No. 2 preferred an appeal bearing No. A/15/242 against the judgment and order passed in CC/5/2012 before the Hon’ble  State Commission, Nagpur Bench. After hearing,  the appeal has been dismissed on 23/09/2016. The appeal preferred by the complainant bearing No. A/15/129 has been decided by the Hon’ble State Commission, Nagpur bench on 9/1/2020, by partially modified an order passed in CC/5/2012, dated 20/9/2014 in clause No. 2 that OP Nos. 1 and 2 are directed to pay Rs. 50,000/- towards physical  for mental harassment and Rs. 15,000/- towards cost of litigation instead of original order passed for mental torture of Rs. 15,000/- and cost of litigation of Rs. 10,000/-. The rest clause of order are not modified. Therefore after merger of judgment passed in appellate Court, the present Execution Proceeding has been filed for the non compliance of order and thereby claiming punishment up to three years along with cost.
2. The summonses have been served upon the Ops/accused and the accused appeared and furnished bail. The Ops/accused filed pursis on 12/09/2022 that OP No. 2 deposited compensation amount in Commission as per appellate Court order and issued letter to take the delivery of repaired truck. The copy of letter dated 16/03/2020 has been filed on record with list of documents dated 14/09/2022. The copy of letter containing replaced engine of complainant’s vehicle and earlier communication dated 17/5/2017 has been filed on record as per list of documents dated 14/09/2022. The OP No. 2 has filed a letter dated 17/5/2017 with registered postal receipt in favor of  complainant stating that the OP No. 2 has replaced the engine of vehicle bearing No. MH-34/AB2126 and ready to pay compensation amount in compliance of order passed by District Commission. The OP No. 2 has filed an application for dismissal of Execution Proceeding for compliance of order stating that the OP by issuing a letter dated 17/5/2017 and 16/03/2020. The vehicle has been repaired and compensation amount has been deposited in Commission on 15/6/2021 by Demand Draft but the complainant failed to take delivery of vehicle. Therefore there is compliance of judgment and order passed by Appellate Court. Therefore there is no willful disobeyance of judgment and order passed in CC/5/2012, dated 20/09/2014 and modified in appeal bearing No. 15/129, decided on 9/1/2020. Therefore the application may be allowed and discharge the accused Nos. 1 and 2.
3. The counsel for complainant objected that the application is not tenable and the Ops failed to comply the modified order passed by State Commission, Nagpur Bench dated 9/1/2020 within 45 days. The complainant has filed evidence in Execution Proceeding power of attorney holder on 14/9/2022 and the complainant has not been cross-examined. Therefore the application filed by the OP is pre-matured and the issue of non compliance of judgment and order has to be decided after conclusion of  trial and it cannot be decided at this stage. Therefore the application for dismissal of complaint for compliance of order may be dismissed with cost.
4. The OP No. 2 has repaired the complainant’s truck bearing No. MH-34/AB2126 and issued letter dated 17/5/2017 with reference to the compliance of order passed in CC/5/2012 on 20/09/2014 informing that the engine has been replaced of complainant’s vehicle bearing No. MH-34/AB2126 and willing to pay compensation amount of Rs. 15,000/- and Rs. 7500/- has been deposited before the Commission on 14/4/2015 filed Demand Draft No. 056397, dated 6/4/2015 along with copy of receipt issued by postal authority for registration of parcel. So also, the OP No. 1 issued letter dated 16/03/2020 informing that the vehicle has been repaired as per judgment and order of Commission by Tata Motors/OP No. 2 and also informed to take the delivery of vehicle as per earlier communication of letter dated 17/5/2017 and after pronounce of judgment and order by the Appellate Court in appeal No. A/15/129, dated 9/1/2020, replacing to take the delivery of vehicle and to  collect the compensation amount of Rs. 57,500/-, the OP No. 1 has filed a letter along with postal receipt of service of registration parcel on record. Thereafter at trial, the Ops offered the complainant to take the delivery of running vehicle and no objection to withdraw the compensation amount deposited by Ops as per judgment of Appellate Court. Therefore there is no willful disobeyance of judgment and order passed by the Commission when prima facie case has not been made out against accused. The continuation of trial for the offence is against natural justice and fair trial.  Therefore the application for closer of Execution Proceeding and discharge of accused Nos. 1 and 2 is allowed as per following order and the case is disposed of by discharging the accused Nos. 1 and 2 under Section 72 of Consumer Protection Act, 2019

ORDER

1. The application for closer of Execution Proceeding and discharge of accused on 27/7/2021 is allowed and the accused Nos. 1 and 2 are discharged under Section 72 of Consumer Protection Act, 2019