M/S. Khalsa Tyre Service vs M/S. G.P.N. Machinery Works

This execution revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 18.12.2013, passed by the Punjab State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in RP No. 42/2013, filed before them by the present respondent G.P.N. Machinery Works, vide which, while allowing the revision petition, the order dated 22.07.2013, passed by the District Forum Bhatinda in execution proceedings before them, was modified.

Briefly stated, the facts of the case are that the present petitioner/complainant M/s. Khalsa Tyre Service filed consumer complaint no. 150 dated 07.07.2009 against the opposite party (OP), M/s GPN Machinery Works, stating that the complainant were a sole proprietorship firm, involved in the repair works of various kinds of vehicles. The complainant purchased a Wheel-Balancing machine on 01.03.2008 for Rs. 1 lakh from the opposite party (OP), G.P.N. Machinery Works. However, right from the very beginning, the machine was not found to be working properly. A mechanic sent by the OP visited them, but could not remove the defects in the machine. Vide sale invoice dated 17.11.2008, the OP sold another machine to the complainant for Rs. 1,19,600/- and told them that for the smooth running of the said machine, one more machine named, "Tendic Rm Straightening" had also to be purchased for a sum of Rs. 50,000/-. The complainant paid the said sum of Rs. 50,000/- to the OP, but the machine was not supplied to them. On raising protest, the OP issued a cheque for a sum of Rs. 30,000/- on 25.03.2009 and promised to refund the remaining sum of Rs. 20,000/-. However, the remaining sum of Rs. 20,000/- was never returned to them. The cheque of Rs. 30,000/- was dishonoured on presentation before the Bank, for which the proceedings under section 138 of the Negotiable Instruments Act were filed before a criminal court. The complainant alleged that the machine purchased by spending Rs. 1,19,600/- also did not function properly. The complainant filed the consumer complaint in question against the OP, seeking directions to refund of Rs. 1,19,600/- spent on the purchase of another machine and also the balance amount of Rs. 20,000/- to them. In addition, a sum of Rs. 50,000/- was also demanded as compensation against mental harassment.

The District Forum vide their order dated 03.09.2009, allowed the consumer complaint and directed that the complainant was entitled for replacement of the machine with a new one of the same quality. In the alternative, the refund of price of Rs. 1,19,600/- alongwith interest @9% p.a. with effect from the date of filing the complaint, should be given to them. In addition, a sum of Rs. 10,000/- as compensation and Rs. 5,000/- as litigation cost should be provided to them. The compliance of this order was ordered to be made within 45 days of the receipt of a copy of the order. The OP remained absent in proceedings before the District Forum and hence, were proceeded against exparte.

It is stated that since the OP failed to execute the order passed by the District Forum, the execution proceedings against them under section 27 of the Consumer Protection Act, 1986 were initiated and warrants were issued for their arrest. The OP filed an appeal before the State Commission, involving a huge delay of 488 days. The said appeal was ordered to be dismissed vide order dated 30.09.2011 of the State Commission.

The execution proceedings under section 27 of the Act were again initiated against the OP and their arrest warrants were issued. The OP filed revision petition against the arrest warrants before the State Commission, but the said petition was withdrawn on 23.01.2013. The OP then appeared before the District Forum and vide order dated 25.06.2013 passed by the District Forum, the OP were directed to return the price of the machine in four equal monthly instalments. It was stated in the said order that the first instalment of Rs. 29,900/- should be paid alongwith interest @ 9% p.a. with effect from 07.07.2009, up to the date of payment. The said order of the District Forum was challenged by the OP before the State Commission as revision petition No. 42/2013. Vide impugned order dated 18.12.2013, the State Commission disposed of the revision petition by directing the OP to comply with the original order dated 03.09.2009, passed by the District Forum, vide which, two alternatives had been provided, i.e., either to replace the machine or to make refund of the amount involved. Being aggrieved against the order of the State Commission, the petitioner have challenged the same by way of the present execution revision petition, taking the plea that they had since arranged for some other machine and hence, the amount involved should be refunded to them.

During proceedings before this Commission, a notice was issued to the Respondent/OP for appearance. The partner of the respondent/OP Pritpal Singh appeared on the hearing held on 03.03.2016 and sought time to engage a counsel. On the next date of hearing, i.e., 09.09.2016, however, none was present for the respondent. The petition was ordered to be admitted on that date and notice was again sent to the respondent for final hearing. On the next date of hearing, i.e., 05.01.2017, none came present for the respondent despite service. They were ordered to be proceeded against exparte, therefore.

During hearing before us, the learned counsel for the petitioner stated that the order passed by the State Commission did not reflect a correct appreciation of the facts and circumstances on record. The petitioner had already made arrangements for another machine. The replacement of the machine at this stage shall not be of any use to them. The order passed by the District Forum by which the refund of the amount had ordered to be given in their favour, should be upheld.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

A glance at the events and circumstances of the case clearly reveals that the respondent/OP deliberately absented themselves in proceedings before the consumer fora at various levels. They were not present during hearing of the complaint before the District Forum and hence, the District Forum had to pass an exparte order against them. They did not challenge the order of the District Forum in appeal etc. immediately, but filed the appeal after the execution proceedings under section 27 had been initiated against them. Their appeal was dismissed by the State Commission vide order dated 30.09.2011, but the OP did not take any steps to implement the order of the District Forum. When the proceedings were again started against them under section 27 of the Act, they filed a revision petition with the State Commission, but the same was got dismissed as withdrawn. Even in front of this Commission, a partner of the OP put in appearance once, and then got himself absented from the proceedings. It is made out from the conduct of the OP that they have caused considerable harassment and agony to the complainant. The OP have failed to explain as to why they could not take steps promptly to remove the defects in the machine supplied by them. They received a sum of Rs. 50,000/- from the complainant for another machine, but never supplied the same. On protest, they refunded a sum of Rs. 30,000/- only by means of cheque, but the said cheque was dishonoured by the Bank. It is evident, therefore, that the action of the OP has caused avoidable inconvenience to the complainant.

The District Forum vide their order dated 3.09.2009 had directed the OP to replace the machine, or to refund the price of the same alongwith interest. The order was to be complied with within a period of 45 days. In pursuance of the said order, the OP should have taken steps to provide a new machine to the complainant, if they wanted to do that; however, even when the execution proceedings were undertaken, the OP did not take any steps to have the orders implemented. At this stage, it shall not be desirable to direct the OP to supply another machine to the complainant. Almost a decade has passed when the complainant entered into some transaction with the OP. The order passed by the State Commission is, therefore, set aside and the OP are directed to refund the amount to the complainant in terms of the order dated 25.06.2013 passed by the District Forum. The first instalment of Rs. 29,900/- alongwith interest @9% p.a. from the date of the complaint shall be paid to the complainant within four weeks from the date of this order. A copy of this order be sent to the District Forum for ensuring compliance of the same by starting execution proceedings against the OP, in case of their failure to implement this order.