R.K. Agrawal, J., President
1. The present Appeal Execution has been filed by Mr. Alok Gupta (hereinafter referred to as Appellant/Complainant) against the Order dated 02.04.2018 passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as State Commission), whereby the Execution Application No. 20 / 2017 filed by the Appellant had been disposed of as satisfied.
2. Brief facts of the case are that the Appellant/Complainant purchased a BMW CKD 320d LCI(CE) Car manufactured by M/s. BMW India Pvt. Ltd. (hereinafter referred to as the Respondent No.2 Manufacturer) from M/s. Deutsche Motoren Pvt. Ltd. (hereinafter referred to as the Respondent No.1 Dealer). Within a span of a week after taking the delivery of the vehicle, it started giving numerous troubles. Despite reporting the troubles to Respondent No.1 Dealer, the troubles were not removed. Alleging Deficiency in Service and Unfair Trade Practice on the part of the Respondents, the Appellant filed a Consumer Complaint before the State Commission. Vide Order dated 14.03.2013, the State Commission partly allowed the Complaint in following terms:-
'…..We hold that the Complainant had not been able to prove any manufacturing defect, all the same, the dealer and the manufacturer are directed to remove the defects in the engine of the vehicle free of cost and in case it was not possible to remove the defects, the engine of the vehicle may be replaced by new one of the same make and model and thereafter deliver the vehicle to the Complainant in the presence of an Independent Technical Expert mutually agreed upon by the Complainant and the OPs. The expert shall certify that the engine was free from all the defects, which shall be final for all purposes. In case, there was no agreement between the parties for Independent Technical Expert, any of the Party may apply for appointment of Independent Technical Expert. This should be done within a period of six months from the date of receipt of the copy of the judgment. OPs shall provide warranty of one year from the date of delivery.'
3. Feeling aggrieved, both the Parties preferred separate Appeals before this Commission, i.e., FA No. 690 / 2013 was filed by the Appellant/Complainant with a prayer for refund of a sum of Rs.25,20,470/- paid by him as sale consideration for the vehicle, with interest @18% p.a. from the date of purchase, i.e., 15.02.2010, till realization, FA No. 485 / 2013 was filed by the Respondent No. 2 Manufacturer for setting aside the impugned Order.Vide Order dated 28.02.2017, this Commission allowed the Appeal, FA No. 485 / 2013, preferred by the Manufacturer and dismissed the Appeal, FA No. 690 / 2013 filed by the Complainant by observing as under:-
'13. Having carefully perused the material on record, we find that the Complainant did not lead any evidence to rebut the aforestated stand of the Manufacturer as well as the Dealer. Pertinently, the Complainant did not even make a request before the State Commission to obtain opinion of an Expert, as contemplated in Section 13(1)(c) of the Act, to ascertain the real cause for noise in the Engine, he had complained of. In our opinion, in the absence of any evidence in rebuttal by the Complainant, no illegality can be read into the order of the State Commission in not directing the Manufacturer to replace the vehicle with a new one. As regards the directions in the afore-extracted paragraph No. 29 of the order for rectification of the defect in the Vehicle free of cost, since the car had run for barely 1587 kms., the same also do not warrant any interference, more so when the Dealer has not challenged the same. Nevertheless, we hold that the Complainant having failed to establish any inherent manufacturing defect in the vehicle, the liability of the Manufacturer in this regard would be to the extent that they are liable to reimburse to the Dealer the costs of repairs in a vehicle during the warranty period, under the agreement between both of the them.
14. Having come to the above-said conclusion, we deem it unnecessary to examine the nature of relationship between the Manufacturer and the Dealer, viz. whether it is Principal to Principal or Principal to Agent, strenuously argued before us on behalf of the Manufacturer.
15. In the result, the Appeal No. 485 of 2013, preferred by the Manufacturer is allowed to the extent indicated above, whereas the Appeal No. 690 of 2013, filed by the Complainant is dismissed, leaving both the parties to bear their own costs.'
4. The Appellant filed Execution Application No. 20 / 2017 before the State Commission for compliance of the Order dated 14.03.2013 passed by the State Commission.Vide Order dated 02.04.2018, the State Commission disposed of the Execution Application as satisfied by observing as under:-
' The JD No. 2 & 3 moved an application dated 21.03.2018 stating that the JD has already carried out and removed the defects which is established from the documents filed alongwith the said application. The car was lying in the workshop for the last seven years for which the only person responsible was DH. The DH could verify the working of the engine in the presence of technical experts. However, as regards other defects which might have accrued during the said seven years like rusting, tyre replacement, painting etc., the JDs are not responsible. The DH was at liberty to take the car and get remaining defects removed from any other workshop and/or to pay to JDs for removing all those defects. Since engine has been rectified, nothing survive in the execution. Similar statement was made on behalf of the JD on the last date of hearing. So it has been prayed that nothing survive in the execution and same may be dismissed as satisfied.
The counsel for DH submitted that other defects which have accrued during seven years of pendency of case and execution are also liable to be rectified by JDs. We do not agree. Those defects could not be and were not subject matter of the complaint case. Cause of action for the same accrued to the DH after filing of the case. For that the DH can seek their proper remedy by fresh complaint. Executing court cannot go behind the decree. There are no directions in the decree to remove those defects.
The application of the JDs is allowed and execution is disposed of as satisfied.'
5. Feeling aggrieved by the Order dated 02.04.2018 passed by the State Commission, the Appellant has filed the present Execution Appeal before this Commission seeking following reliefs:-
'It is humbly prayed, that the Order dated 02.04.2018 be set aside as the Appellant is already suffering a lot financially and otherwise because of the harassment caused to him. He is further being harassed as he had to file rounds of litigation for getting justice. Respondent be directed to pay the cost of the car with interest or in alternative a new car be provided,
Any other relief which this Hon’ble Commission may deem fit and proper in the circumstances of it be also granted in favour of the Appellant.
Appeal be accepted with costs throughout.
Record of the case before the Commission below be called.'
6. We have heard Mr. Ashish Kapur, learned Counsel for the Appellant, Mr. Ashok Chhabra, learned Counsel for the Respondent and perused the averments made in the Appeal Execution.
7. Mr. Ashish Kapur, learned Counsel for the Appellant submitted that the vehicle was in the custody of the Respondent No. 1 Dealer for long time of 7 years and it was their sole responsibility to take due care of the vehicle when they were already well aware that the matter is still pending adjudication. They should have taken care of all the defects which had developed within seven years and hand over a defect free car to the Appellant. He further submitted that the State Commission erred in opining that the Appellant should file a fresh complaint for getting removed the defects which have developed within seven years. Since seven years have already lapsed and as per guidelines laid down by the Hon’ble Apex Court a diesel vehicle can validly run only for ten years out of which approximately 8 years already lapsed and he prayed that the Respondents be directed to refund the cost of the car with interest or in alternative to provide a new car.
8. Mr. Ashok Chhabra, learned Counsel for the Respondent No. 1 Dealer submitted that they have satisfied the Decree and the Executing Court cannot go behind the Decree.In support of his contention he relied upon a Judgment dated 16.08.2017 passed by the Hon’le Supreme Court in Civil Appeal No. 1885 of 2008 ‘Lekh Raj (Dead) through LRs & Ors. Vs. Ranjit Singh & Ors.’ reported in II (2018) SLT 347. He supported the Order passed by the State Commission as according to him the State Commission had passed a well-reasoned order and does not call for any interference.
9. We have given our thoughtful consideration to the various pleas raised by the learned Counsel for the Parties.It is not in dispute that the State Commission while disposing off the Complaint filed by the Appellant/Complainant had only directed for removing the defects in the engine of the vehicle free of cost and in case it was not possible to remove the defects, the engine of the vehicle may be replaced by new one of the same make and model and thereafter deliver the vehicle to the Complainant in the presence of an Independent Technical Expert mutually agreed upon by the Complainant and the OPs, which Order has been upheld by this Commission in the Appeals preferred by the respective Parties. Further, before the State Commission in the Execution Application giving rise to the present Appeal, the Decree Holder and the Judgment Debtors, i.e., the Appellant/Complainant and the Respondents/Opposite Parties have made a statement that the engine of the vehicle had been rectified. Thus, the Order passed by the
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State Commission in the Complaint as upheld by this Commission, has been satisfied. The State Commission had, therefore, rightly disposed off the Execution Application filed by the Complainant as satisfied. Needless to mention that the State Commission in the Execution Proceedings cannot go beyond the Decree/Order which is sought to be executed. In view of the foregoing discussions, we do not find any merit in this Appeal and it is dismissed. 10. However, keeping in view the facts and circumstances of this case that the Vehicle was sent to workshop for repairs on 06.10.2010 and since then it is in the custody of Respondent No.1 Dealer; the State Commission decided the Execution Application on 02.04.2018 and the Appellant/Complainant is not enjoying the vehicle since 06.10.2010, in the interest of Justice, we deem it appropriate to request M/s. BMW India Private Limited, Respondent No. 2 herein, to take steps to make the vehicle purchased by the Appellant/Complainant, in a proper running condition and if required, replace the tyres etc. out of the Corporate Social Responsibilities (CSR) Fund.