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2017 DIGILAW 531 (HP)

Narender Guleria v. Sapna Sharma

2017-05-16

MEENA VERMA, P.S.RANA, VIJAY PAL KHACHI

body2017
ORDER P.S. Rana (R) President. —Present appeal is filed under section 27(A) of Consumer Protection Act 1986 against order dated 09.12.2016 passed by Learned Executing Forum Mandi in execution application No. 58/2016 title Sapna Sharma v. Narender Guleria . Brief facts of Case: 2. Smt. Sapna Sharma filed consumer complaint No.102/2012 before learned District Forum Mandi. On dated 26.10.2013 learned District Forum Mandi allowed the complaint and directed opposite party No.1 i.e. Satluj Motors NH 21 Lunapani District Mandi H.P. to repair the vehicle of complainant to the satisfaction of complainant within 15 days and to give its delivery to complainant on payment of actual repair charges. Learned District Forum further ordered that in default opposite party No.1 would be liable to pay penalty at the rate of Rs.100/- per day from the date of filing of complaint till vehicle is actually handed over to complainant after repairs. In addition learned District Forum also ordered that opposite party No.1 would pay Rs.50000/-(Fifty thousand) as compensation to complainant. In addition learned District Forum further ordered that opposite party No.1 would pay Rs.5000/-(Five thousand) as costs of litigation. Learned District Forum further ordered that opposite party No.1 would deduct Rs.55000/-(Fifty five thousand) from repair charges and would take the balance amount from complainant. Learned District Forum further ordered that opposite party No.3 would settle the claim of complainant within 30 days and further ordered that complainant would be at liberty to file fresh complaint against opposite party No.3 on same cause of action if the complainant would not be satisfied. Feeling aggrieved against the order passed by learned District Forum Satluj Motors filed appeal No.388/2013 before H.P. State Consumer Commission. H.P. State Consumer Commission dismissed the appeal filed by appellant Satluj Motors on dated 30.06.2014. Thereafter Satluj Motors filed revision petition No.3372 of 2014 before Hon''ble National Consumer Disputes Redressal Commission and Hon''ble National Commission disposed of revision petition on dated 01.04.2015. Hon''ble National Commission passed the order that Satluj Motors would repair car and would make it road worthy and thereafter would hand over the copy of the bill to complainant or her authorised agent which would be subject to approval by learned Executing Court. Hon''ble National Commission further ordered that after the approval from the learned Executing court car would be returned to complainant after receipt of entire amount. Hon''ble National Commission further ordered that after the approval from the learned Executing court car would be returned to complainant after receipt of entire amount. Hon''ble National Commission further ordered that repair charges would not exceed estimated costs of repair i.e. Rs.247312/-(Two lac forty seven thousand three hundred twelve). Hon''ble National Consumer Disputes Redressal Commission further ordered that complainant would be entitled to Rs.10000/-(Ten thousand) as litigation charges and same would be paid within 30 days failing which interest at the rate of 9% per annum would be charged. 3. Thereafter Sapna Sharma filed execution application No.58 of 2016 under Section 27 of Consumer Protection Act 1986 pleaded therein that opposite party did not comply the order of Hon''ble National Consumer Disputes Redressal Commission and it is pleaded that proceedings under section 27 of Consumer Protection Act 1986 be initiated against Satluj Motors. 4. Learned Executing Forum on dated 01.11.2016 held that there are sufficient material to proceed against the opposite party under section 27 of Consumer Protection Act 1986. Learned Executing Forum ordered that opposite party be served as accused under section 27 of Consumer Protection Act 1986. Learned Executing Forum issued bailable warrant against opposite party. Bailable warrant receive back unexecuted on dated 09.12.2016 and 03.01.2017. Feeling aggrieved against bailable warrant Proprietor Satluj Motors filed present appeal before State Commission under section 27A of Consumer Protection Act 1986. 5. We have heard learned advocate appearing on behalf of appellant and we have also perused entire record of Executing Forum carefully. 6. Following points arises for determination in present appeal. 1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal. 2. Final order. Findings upon point No.1 with reasons: 7. Submission of learned Advocate appearing on behalf of appellant that learned Executing Forum has committed material procedural irregularity is decided accordingly. It is well settled law that under section 27 of Consumer Protection Act 1986 learned Executing Forum is under legal obligation to try the complaint as summary trial as mentioned under Code of Criminal Procedure 1973. 8. The procedure of summary trial under Code of Criminal Procedure 1973 is mentioned under Chapter-XXI of Code of Criminal Procedure 1973 in Sections 260 to 265 of Code of Criminal Procedure 1973. 8. The procedure of summary trial under Code of Criminal Procedure 1973 is mentioned under Chapter-XXI of Code of Criminal Procedure 1973 in Sections 260 to 265 of Code of Criminal Procedure 1973. As per Section 262 of Code of Criminal Procedure 1973 procedure for summary trial would be procedure applicable to summons cases. 9. As per section 204 of Code of Criminal Procedure 1973 no summon or warrants would be issued against the opposite party/accused until list of complainant''s witnesses is filed before learned Executing Forum. State Commission has carefully perused the file of learned Executing Forum. It is proved on record that complainant did not file list of complainant''s witnesses before learned Executing Forum as required under section 204(2) of Code of Criminal Procedure 1973. The present application under section 27 of Consumer Protection Act 1986 was filed before the learned Executing Forum otherwise than police report. State Commission is of the opinion that prior to issuing summons or warrants to the opposite party/accused complainant was under legal obligation to file list of complainant''s witnesses under section 204(2) of Code of Criminal Procedure 1973 accompanied by copy of complaint. Learned Executing Forum did not obtain list of complainant''s witnesses accompanying by copy of complaint prior to issue of notice to opposite party/accused under section 27 of Consumer Protection Act 1986. 10. Learned Executing Forum did not obtain preliminary evidence of complainant by way of affidavit as required under section 200 of Code of Criminal Procedure 1973 in private complaint. Affidavit filed with complaint is not preliminary evidence by way of affidavit as per section 13(4) of Consumer Protection Act 1986. Affidavit filed in support of complaint is affidavit in support of complaint only. Complaint is defined under section 2(c) of Consumer Protection Act 1986 and affidavit filed in support of pleading cannot be treated as preliminary evidence under section 13(4) of Consumer Protection Act 1986. It is held that it is not expedient in the ends of justice and on the principles of natural justice to proceed further unless material procedural irregularity is not rectified by learned Executing Forum. Point No.1 is decided accordingly. Point No.2: Final Order 11. In view of findings upon point No.1 above appeal is partly allowed. Interim order of learned Executing Forum dated 09.12.2016 is set aside. Point No.1 is decided accordingly. Point No.2: Final Order 11. In view of findings upon point No.1 above appeal is partly allowed. Interim order of learned Executing Forum dated 09.12.2016 is set aside. Learned Executing Forum is ordered to obtain preliminary evidence of complainant by way of affidavits under section 200 of Code of Criminal Procedure and thereafter proceed under section 204 of Code of Criminal Procedure 1973 if sufficient grounds for proceeding exists. Learned Executing Forum is also ordered to obtain list of complainant witnesses accompanied with complaint prior to issue of notice to opposite party/accused. Learned Executing Forum will dispose of execution application within two months after the receipt of file. Learned Executing Forum will also approve repair bills submitted by opposite party/accused not exceeding estimated costs i.e. Rs.247312/- as ordered by Hon''ble National Commission on dated 01.04.2015 in revision No.3372 of 2014 prior to return of car to complainant. Car will be returned to complainant only after payment of repair charges by complainant not exceeding Rs.247312/-. Opposite party will adjust an amount to the tune of Rs.50000/- awarded as compensation and will also adjust litigation charges to the tune of Rs.10000/-(Ten thousand) awarded by Hon''ble National Commission in repair charges. Observation will not effect the merits of execution proceeding in any manner. File of learned Executing Forum along with certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Be listed before Executing Forum on date 01.06.2017. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.