Escorts

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edited February 2010 in Automobile
G. Asokan, Therikunnathu Veedu, Palottuvila, Malayinkeezhu, Thiruvananthapuram.


(By Adv. K. Satheesh Kumar)


Opposite parties:


  1. M/s. Asian Motors, Room No.243(H), Puthenpeedika, Omalloor – P.O., Pathanamthitta – 689 647.




(By Adv. Narayan. R)

  1. M/s. Escorts Ltd., (Head, All India Sales), 18/4, Mathura Road, Faridabad – 121 007.




(By Adv. N.C. Joseph)


This O.P having been heard on 25..03..2009, the Forum on 15..04..2009 delivered the following:





ORDER
SMT. S.K.SREELA, MEMBER:


Alleging deficiency in service and unfair trade practice, the complainant has filed this complaint for compensation pleading that the Tractors purchased by the complainant which were supplied by the 1st opposite party are found to be fitted with duplicate/sub-standard parts and some of the essential parts/components as per the terms of full option are not fitted.
The 1st opposite party has filed a petition to hear the maintainability of the complaint on the following grounds: The complainant is not a consumer as defined in Section 2(1)(d)(i) of the Consumer Protection Act, as he had purchased 2 tractors from the 1st opposite party for commercial purpose. This Forum has no territorial jurisdiction to entertain this complaint. There is joinder of cause of action besides the fact that the complainant suffers from non-joinder of necessary parties, as the manufacturer of Atlas Copco Compressors have not been made a party to this complaint.


The 2nd opposite party has also raised a preliminary objection in their version with regard to the territorial jurisdiction.


Considering the above objections, the issue of maintainability of the complaint was heard as a preliminary issue.


One of the main contentions raised by the 1st opposite party is that, this Forum has no territorial jurisdiction to entertain this complaint, as the complainant had purchased the tractors from Pathanamthitta, the payments were made in Pathanamthitta and the 1st opposite party is carrying on his trade and occupation at Pathanamthitta. Furthermore, the documents produced as 1 & 2 by the complainant would also show that the Courts at Pathanamthitta alone shall have jurisdiction to entertain disputes, if any, between the purchaser and the dealer. The learned counsel for the 1st opposite party vehemently argued that no part of the cause of action has arisen within the jurisdiction of the Thiruvananthapuram Consumer Disputes Redressal Forum and prayed for dismissal of the complaint on this ground.


The 2nd opposite party in their version has taken the very same contentions raised by the 1st opposite party with regard to the contention of territorial jurisdiction.


From the complaint it is evident that the 1st opposite party is at Pathanamthitta and the 2nd opposite party is at Faridabad. There is no case that these 2 opposite parties have branch offices at Thiruvananthapuram.
The 1st opposite party's contention that the documents produced by the complainant as 1 & 2 would show that courts at Pathanamthitta alone shall have jurisdiction to entertain disputes is not acceptable since it is well settled position by now that parties by mutual consent cannot confer jurisdiction upon a particular court when such court lacks inherent jurisdiction. At this juncture, what is to be looked into is whether any part of the cause of action has arisen within the territorial jurisdiction of District Forum, Thiruvananthapuram.


The complainant has pleaded in para 7 of the complaint that this Forum is vested with jurisdiction to entertain this matter for the complainant/petitioner resides at Palottuvila, Malayinkeezhu, the money/DD transaction took place at Malayinkeezhu (KSFE, Malayinkeezhu being the financier for the purchase of the machineries/tractors) and the quarry is situated at Manali, Malayinkeezhu where the tractors are located; that all in Trivandrum District.


As per Sec. 11(2) of the Consumer Protection Act


(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business, or has a branch office or) personally works for gain; or


(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or (carries on business or has a branch office, or personally works for gain: PROVIDED that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or (carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or


(c) the cause of action, wholly or in part, arises.


Accordingly, the complainant has not filed the complaint in a place as stipulated in Sec 11(2) (a) or (b) as it has been admitted in para 7 of the complaint itself. The only aspect for consideration is with regard to Sec 11 (2) (c). Whether the money/DD transaction which took place at Malayinkeezhu forms part of the cause of action. The KSFE is not an opposite party in this case. Moreover, the complainant has pleaded in the complaint itself that KSFE, Malayinkeezhu is the financier for the purchase of the tractors. It is a settled position that even though the D.Ds were obtained at Thiruvananthapuram for payment to be made at Palottuvila, it cannot be said that the part of the cause of action did arise in Thiruvananthapuram. Moreover, the document pertaining to the DD transactions reveals that the DD has been enclosed along with the same, which is seen addressed to the 1st opposite party who is at Pathanamthitta. Though the complainant had argued that the representative of the 1st opposite party called on the complainant's residence in Malayinkeezhu and negotiated the sale, there is no pleading with regard to the same in the complaint. No amount of evidence can be looked into upon a plea which has not been pleaded in the complaint.


Considering the above discussions we find that this Forum lacks territorial jursidiction to entertain the complaint and hence other issues require no consideration.


Hence the complaint is dismissed with liberty to the complainant to approach the appropriate Forum for redressal of his grievances.

Comments

  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Ayyappan Paingaladiyan,

    Near Snake Park,

    P.O.Parassinikkadavu Complainant

    (Rep. by Adv.M.K.Venugopal)



    1. Regional Manger,

    KSFE, Aradhanakamala Buildings,

    Kallayi Road, Kozhikode

    2. The Branch Manger,

    KSFE, opposite parties

    Pappinisseri Branch,

    P.O.Pappinisseri.





    O R D E R





    This is a complaint filed under section12 of the consumer protection act for an order directing the opposite parties to pay Rs.15000/- as compensation to the complainant.

    The case of the complainant is that he had applied for a loan for constructing a house at Pappinissery on 6.6.2000 and has produced 15 documents as required by them. The 2nd opposite party had received Rs.1000/- as processing charge and Rs.10/- as application fee from the complainant. On 20.7.00 the 1st opposite party had issued a notice to the complainant for producing legal heirship certificate of his brother Velayudhan or a declaration from the court, in addition to the 15 documents already produced. But as there was no FIR regarding the missing of Velayudhan, he did not get legal heirship certificate and 1st opposite party stated that a declaration from the court is sufficient so the complainant had filed a suit and the same was decreed infavour of the complainant and had produced a certified copy of the judgment before 1st opposite party.


    At that time 1st opposite party had stated that they will not grand loans to coolies and advised him to try to get from some where else and returned all the documents to the complaint. No other reason was assigned by opposite party for returning the loan application. This Act of the opposite parties re not justifiable. The complaint had spent huge amount for getting a decree and for other purposes. Because of the denial of the loan amount the complaint had sustained considerable loss and it was due to the wrongful act of the opposite parties and due to their defective service. Hence the complaint.

    On receiving the notice from the Forum both the opposite parties have entered appearance and filed their version.

    Opposite parties 1 and 2 filed version contending that the complaint had been field after a lapse of 4years and the complainant is not a consumer under the act. The complainant has not availed any service for a consideration from the opposite party and the complaint is not maintainable. Rs.1000/- was received as the legal fee for an independent lawyer for scrutinizing the documents. So it is not true to state that the opposite party has received Rs.1000/- as service charge. As per the legal scrutiny the lawyer has given his opinion that the documents offered as security cannot be acceptable without obtaining legal heir ship certificate of Velayudhan, one of the co-owner or a declaration from the court with regard to the death of Velayudhan. Even though the same was intimated to the complainant on 22.7.00, there was no response from the complainant.


    So the Senior Manger has sent another letter to the complainant on 19.10.00 informing him to take back the document and records since the loan application has to be closed. But the complainant neither approached the senior manager or the opposite party has not taken back the documents. So again on 22.12.01 the Senior Manger, loan unit has sent another letter to the complainant to take back the documents from the office. After that the complainant sent a letter to the Senior Manger requesting 3 months more time for producing the documents as required as per the legal opinion.


    After that the complainant sent a letter to the Senior Manger dt.9.5.02 and the same was received by the Manger on 1.6.02. But on 1.6.02, the complainant approached the Senior Manger and took back the documents, since the loan application was closed on December 2001After two years, on 25.10.04, the complainant approached the Senior Manger, H.P Unit, Calicut with a request to consider his loan application again and the Manger, advised him to file a fresh application along with the court decree and other documents, since the loan application was closed. So there is no deficiency of service on the part of opposite party. More over the opposite party has no contact with the complainant and the complainant has communicated with the Senior Manger, Aradhana tourist Home, Kamala Building, HP Unit, Kallayi Road, Calicut 2 and is a necessary party and hence the complaint ;is liable to be dismissed.

    Upon the above contentions the following issues have been raised for consideration.

    1. Whether the complaint; is a consumer? 2. Whether the complaint is barred by limitation.

    3. Whether there is any deficiency on the part of opposite parties?

    4. Whether the complainant is entitled to any relief?

    5. Relief and cost.

    The evidence in this case consists of the oral testimony of PW1, DW1 Exts.A1 to A4 and B1 and B 2.

    Issue No.1

    The case of the complaint is that even though he had applied for a loan before 2nd opposite party on 6.6.00 along with 15 documents and paid Rs.1000/- as processing charge, the opposite parties had not granted the loan. Ext.A1 is the receipt Rs.10/- issued by 2nd opposite party as application fee, A2 is the receipt of Rs.1000/- issued by2nd opposite party as processing charge on 6.6.00 and A3 is the receipt by 2nd opposite party through which 2nd opposite party had received 15 documents from the complainant. Ext.A1 to A3 proves that the complainant had purchased an application form after giving Rs.10/- and availed service for which he has paid Rs.1000/-.


    The contention of the opposite parties is that Rs.1000/- was received as legal fee is not correct. It is received as processing fee which is clearly written in ext.A2. So, as per the Consumer protection act, Consumer means any person who buys any goods for consideration or avails any service for consideration which has been paid or promised or partly paid or partly promised under any system of deferred payment. So the complainant had purchased application and availed service of opposite parties and hence the complainant is a consumer of the opposite parties and hence issue No.1 is found in favour of the complainant.

    The other contention of the opposite parties that the complaint is filed after 4years from the date of alleged transaction and hence the complaint is barred by limitation. As per this case, the cause of action for the complaint is arised only after the closing of the loan application. According to the complainant he had purchase the application on 9.3.2000 and submitted the application on 6.6.00 to 2nd opposite party along with 15 documents. But on 22.7.o0 he had received intimation from 1st opposite party that he has to produce, the legal heirship certificate of sri.Velayudhan or a declaration from the court in respect of the said Velayudhan as per Ext.A4. Since the FIR was not lodged with respect to the absconding of the above said Velayhudhan, he has not received the legal heirship certificate. So he had filed a suit before the Munsiff court, Taliparamba for declaration. Meanwhile opposite party had issued B5 and B6 for taking back the documents and to cancel the loan application.


    But the complainant issued B1 reply to B4 and B5 letter stating that he had applied for declaration before Munsiff court. In ext.B2, the letter issued by the complainant to 1st opposite party for extension of time for producing the declaration, there was an endorsement dt.29.5.02 that he had taken back the documents, 1, 2, and 4 stated in Ext., A3 receipt. The explanation given by the complainant is that he had taken back that documents for producing before the Munsiff court in the declaration suit and they contention can be believed. Moreover there is no endorsement that the loan application was cancelled by the applicant. In Ext.B3 nothing is stated to the effect that the application will be cancelled if the required documents are not produced within a required time. The application filed by the complainant before 1st opposite party for granting the loan as per the application dt.6.6.00 after receiving the declaration from the Munsiff court, there is an endorsement by the complainant on 26.10.04.


    If the loan application was closed in 2001 itself, the opposite party ought to have return back all the 15 documents received by them soon after the date of closing. No other documents are produced by the opposite party for proving that they had closed the loan application during 2001. So the loan application stands closed only after returning all the documents. So the cause of; action for the complainant is arise only on 26.10.04, the date on which the complainant had received back the documents. The complaint was filed on 16.11.04 i.e., within one month and hence the complaint is filed within time and the complaint is maintainable.

    Issue Nos. 3 to 5

    It is proved beyond doubt that the complainant had applied for loan on 6.6.00 along with 15 documents with process fee and application charge. It is also proved that the complainant was directed to produce either legal heir ship certificate or declaration for granting loan. But complainant took 3 years time for producing the same before the opposite party. But the complainant had informed the opposite party that he had applied for declaration and will take time for court proceedings and requested for extension of the time for producing the same. But the opposite party has not issued any reply to this. The complainant had produced the declaration on 26.10.04 before opposite party and at that time only the opposite party had informed the complainant that the loan application was closed in 2001.


    If the loan application was closed by 1st opposite party in 2001, they can very well issue a reply to B1 and B2 letter stating these things. More over they had kept the documents also with them till 26.10.04. This shows that there is deficiency on the part of opposite parties for giving correct information to the complainant. It is also true that the complainant had suffered some mental and physical strain. So we are of the opinion that the complainant is entitled to get Rs.3000/-as compensation from the opposite parties and Rs.1000/- as cost of the proceedings

    In the result the complaint is allowed directing the opposite parties to pay Rs.3000/-(Rupees Three thousand only) as compensation and Rs.1000/-(Rupees One thousand only) as cost of the proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is at liberty to execute the order under the provisions of consumer protection Act.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Ayyappan Paingaladiyan,

    Near Snake Park,

    P.O.Parassinikkadavu Complainant




    1. Regional Manger,

    KSFE, Aradhanakamala Buildings,

    Kallayi Road, Kozhikode

    2. The Branch Manger,

    KSFE, opposite parties

    Pappinisseri Branch,

    P.O.Pappinisseri.



    O R D E R





    This is a complaint filed under section12 of the consumer protection act for an order directing the opposite parties to pay Rs.15000/- as compensation to the complainant.

    The case of the complainant is that he had applied for a loan for constructing a house at Pappinissery on 6.6.2000 and has produced 15 documents as required by them. The 2nd opposite party had received Rs.1000/- as processing charge and Rs.10/- as application fee from the complainant. On 20.7.00 the 1st opposite party had issued a notice to the complainant for producing legal heirship certificate of his brother Velayudhan or a declaration from the court, in addition to the 15 documents already produced. But as there was no FIR regarding the missing of Velayudhan, he did not get legal heirship certificate and 1st opposite party stated that a declaration from the court is sufficient so the complainant had filed a suit and the same was decreed infavour of the complainant and had produced a certified copy of the judgment before 1st opposite party.


    At that time 1st opposite party had stated that they will not grand loans to coolies and advised him to try to get from some where else and returned all the documents to the complaint. No other reason was assigned by opposite party for returning the loan application. This Act of the opposite parties re not justifiable. The complaint had spent huge amount for getting a decree and for other purposes. Because of the denial of the loan amount the complaint had sustained considerable loss and it was due to the wrongful act of the opposite parties and due to their defective service. Hence the complaint.

    On receiving the notice from the Forum both the opposite parties have entered appearance and filed their version.

    Opposite parties 1 and 2 filed version contending that the complaint had been field after a lapse of 4years and the complainant is not a consumer under the act. The complainant has not availed any service for a consideration from the opposite party and the complaint is not maintainable. Rs.1000/- was received as the legal fee for an independent lawyer for scrutinizing the documents. So it is not true to state that the opposite party has received Rs.1000/- as service charge. As per the legal scrutiny the lawyer has given his opinion that the documents offered as security cannot be acceptable without obtaining legal heir ship certificate of Velayudhan, one of the co-owner or a declaration from the court with regard to the death of Velayudhan.


    Even though the same was intimated to the complainant on 22.7.00, there was no response from the complainant. So the Senior Manger has sent another letter to the complainant on 19.10.00 informing him to take back the document and records since the loan application has to be closed. But the complainant neither approached the senior manager or the opposite party has not taken back the documents. So again on 22.12.01 the Senior Manger, loan unit has sent another letter to the complainant to take back the documents from the office. After that the complainant sent a letter to the Senior Manger requesting 3 months more time for producing the documents as required as per the legal opinion.


    After that the complainant sent a letter to the Senior Manger dt.9.5.02 and the same was received by the Manger on 1.6.02. But on 1.6.02, the complainant approached the Senior Manger and took back the documents, since the loan application was closed on December 2001After two years, on 25.10.04, the complainant approached the Senior Manger, H.P Unit, Calicut with a request to consider his loan application again and the Manger, advised him to file a fresh application along with the court decree and other documents, since the loan application was closed. So there is no deficiency of service on the part of opposite party. More over the opposite party has no contact with the complainant and the complainant has communicated with the Senior Manger, Aradhana tourist Home, Kamala Building, HP Unit, Kallayi Road, Calicut 2 and is a necessary party and hence the complaint ;is liable to be dismissed.

    Upon the above contentions the following issues have been raised for consideration.

    1. Whether the complaint; is a consumer? 2. Whether the complaint is barred by limitation.

    3. Whether there is any deficiency on the part of opposite parties?

    4. Whether the complainant is entitled to any relief?

    5. Relief and cost.

    The evidence in this case consists of the oral testimony of PW1, DW1 Exts.A1 to A4 and B1 and B 2.

    Issue No.1

    The case of the complaint is that even though he had applied for a loan before 2nd opposite party on 6.6.00 along with 15 documents and paid Rs.1000/- as processing charge, the opposite parties had not granted the loan. Ext.A1 is the receipt Rs.10/- issued by 2nd opposite party as application fee, A2 is the receipt of Rs.1000/- issued by2nd opposite party as processing charge on 6.6.00 and A3 is the receipt by 2nd opposite party through which 2nd opposite party had received 15 documents from the complainant. Ext.A1 to A3 proves that the complainant had purchased an application form after giving Rs.10/- and availed service for which he has paid Rs.1000/-. The contention of the opposite parties is that Rs.1000/- was received as legal fee is not correct.


    It is received as processing fee which is clearly written in ext.A2. So, as per the Consumer protection act, Consumer means any person who buys any goods for consideration or avails any service for consideration which has been paid or promised or partly paid or partly promised under any system of deferred payment. So the complainant had purchased application and availed service of opposite parties and hence the complainant is a consumer of the opposite parties and hence issue No.1 is found in favour of the complainant.

    The other contention of the opposite parties that the complaint is filed after 4years from the date of alleged transaction and hence the complaint is barred by limitation. As per this case, the cause of action for the complaint is arised only after the closing of the loan application. According to the complainant he had purchase the application on 9.3.2000 and submitted the application on 6.6.00 to 2nd opposite party along with 15 documents. But on 22.7.o0 he had received intimation from 1st opposite party that he has to produce, the legal heirship certificate of sri.Velayudhan or a declaration from the court in respect of the said Velayudhan as per Ext.A4.


    Since the FIR was not lodged with respect to the absconding of the above said Velayhudhan, he has not received the legal heirship certificate. So he had filed a suit before the Munsiff court, Taliparamba for declaration. Meanwhile opposite party had issued B5 and B6 for taking back the documents and to cancel the loan application.


    But the complainant issued B1 reply to B4 and B5 letter stating that he had applied for declaration before Munsiff court. In ext.B2, the letter issued by the complainant to 1st opposite party for extension of time for producing the declaration, there was an endorsement dt.29.5.02 that he had taken back the documents, 1, 2, and 4 stated in Ext., A3 receipt. The explanation given by the complainant is that he had taken back that documents for producing before the Munsiff court in the declaration suit and they contention can be believed. Moreover there is no endorsement that the loan application was cancelled by the applicant. In Ext.B3 nothing is stated to the effect that the application will be cancelled if the required documents are not produced within a required time.


    If the loan application was closed in 2001 itself, the opposite party ought to have return back all the 15 documents received by them soon after the date of closing. No other documents are produced by the opposite party for proving that they had closed the loan application during 2001. So the loan application stands closed only after returning all the documents. So the cause of; action for the complainant is arise only on 26.10.04, the date on which the complainant had received back the documents. The complaint was filed on 16.11.04 i.e., within one month and hence the complaint is filed within time and the complaint is maintainable.

    Issue Nos. 3 to 5

    It is proved beyond doubt that the complainant had applied for loan on 6.6.00 along with 15 documents with process fee and application charge. It is also proved that the complainant was directed to produce either legal heir ship certificate or declaration for granting loan. But complainant took 3 years time for producing the same before the opposite party. But the complainant had informed the opposite party that he had applied for declaration and will take time for court proceedings and requested for extension of the time for producing the same. But the opposite party has not issued any reply to this.


    The complainant had produced the declaration on 26.10.04 before opposite party and at that time only the opposite party had informed the complainant that the loan application was closed in 2001. If the loan application was closed by 1st opposite party in 2001, they can very well issue a reply to B1 and B2 letter stating these things. More over they had kept the documents also with them till 26.10.04. This shows that there is deficiency on the part of opposite parties for giving correct information to the complainant. It is also true that the complainant had suffered some mental and physical strain. So we are of the opinion that the complainant is entitled to get Rs.3000/-as compensation from the opposite parties and Rs.1000/- as cost of the proceedings
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Complainant:

    Radhamani, Thenguvila Veedu, Kannankarakonam, Thonnakkal P.O, Thiruvananthapuram.




    Opposite parties:

    1.

    The Manager, K.S.F.E Attingal Branch.
    2.

    The Regional Manager, K.S.F.E, Thiruvananthapuram.
    3.

    The Managing Director, K.S.F.E, Thrissur.


    ORDER


    Complainant Radhamani is a subscriber of K.S.F.E Chitty as per chitty No. 26/2000 and chittal No. 41. The chitty amount is Rs. 1 lakh. The complainant regularly paid the instalments till 16.09.2004. On that day when she came before the opposite party's office to remit the chitty instalment she was informed that the chitty had bid in her favour on 18.08.2003. Immediately after that she enquired the Manager about the chitty. Then he replied that he had informed the matter at that time itself by registered post. The complainant enquired at the post office about this, then the post office authorities told her that they have got nothing from K.S.F.E for the complainant.


    Thereafter again the complainant approached the opposite party for her grievances. But they behaved very badly towards the complainant. Complainant sent notices to the opposite party, but they did not respond to it. Hence she has approached before this Forum for the redressal of her grievances.

    Opposite parties 1 to 3 filed version contending the case of the complainant. They state that complainant who is subscriber to chitty No. 26/00/41 bid the chitty at auction held on 18.08.2003.


    She filed proxy in favour of this opposite party to bid the chitty on her behalf in her absence and it is on the basis of the proxy that chitty was confirmed in her favour. As per terms of proxy this opposite party is not bound to inform the fact of bidding. Subscriber is to enquire with the Branch and understand the result of each auction. Inspite of specific condition, this respondent intimated the complainant result of auction on 22.08.2003. She did not produce surety for drawal of prize money. She was intimated about prizing of chitty in her favour when she visited the Branch for remitting chitty subscription.


    She did not receive money as she could not procure surety or else she was not in necessity of money since chitty was confirmed in her absence on the basis of the proxy produced on 16.05.2003. On receipt of her complaint about non-receipt of prize intimation letter, this opposite party enquired with the Attingal Post Office about the fate of registered prize intimation letter addressed to complainant and customers care centre of Postal Department intimated that the letter was duly despatched on 22.08.2003 and was delivered on 27.08.2003.


    A subsequent letter under certificate of posting was sent to complainant on 25.10.2004, but she did not turn up to receive the prize money by producing surety. This opposite party is willing to release the prize money on and when she produced surety as per rules of the company represented by this respondent. There is no deficiency of service so as to attract intervention of Hon'ble Forum. In the circumstances complaint is only to be dismissed in limine. Further they submit that she did not produce sureties till the date of filing of complaint for drawal of prize money even after her coming to know of bidding on 16.09.2004.

    Points that would arise for consideration are:-

    1.

    Whether there is deficiency in service from the side of opposite parties?
    2.

    Reliefs and costs.

    Points (i) & (ii):- In this case the main allegation of the complainant is that the 1st opposite party, the Branch Manager, K.S.F.E Attingal did not inform the matter to the complainant that the chitty was bid in her favour on 18.08.2003. She know the fact only on 16.09.2004 when she came before the opposite party's office to remit the chitty instalment. As per the complainant, it is the duty of the opposite parties to inform the matter to the subscribers immediately after the auction. Hence there is deficiency in service from the side of opposite parties. To prove her contentions she has filed proof affidavit and deposed as PW1 and produced 4 documents as Exts. P1 to P4. Ext.


    P1 is the copy of chitty pass book of Chitty No. 26/00 in the name of complainant. As per this document date of commencement of chitty is seen 23.12.2000 and date of termination of chitty is 17.03.2009. In this document it is seen that the complainant had paid the instalment upto 46. Ext. P2 is the copy of notice issued by the complainant to the 1st opposite party dated 19.09.2004 demanding chitty amount. Ext. P3 is the copy of the notice issued by the complainant to the 1st opposite party dated 30.10.2004 requesting the payment of chitty amount which has been bid on 18.08.2003.


    Ext. P4 is the copy of letter issued by the complainant to the 1st opposite party on 30.10.2004. In this letter the complainant had stated that the letter was sent on 25.10.2004. The opposite party replied that the complainant should as soon as possible receive the chitty amount from the opposite party. The complainant through this letter informed the opposite party that she was not willing to accept the amount. She demanded interest for that amount. In this case to prove the contentions of the opposite party, the opposite parties have filed proof affidavit and examined as DW1 and produced 9 documents.


    The opposite parties stated that they have informed the complainant regarding the above prize intimation on 22.08.2003. But the complainant did not produce surety for drawal of prize money and draw the chitty amount. On receipt of her complaint about non-receipt of prize intimation letter, the opposite party enquired with the Attingal Post Office about the fate of registered prize intimation letter addressed to complainant and customer care centre of Postal Department intimated that the letter duly despatched on 22.08.2003 was delivered on 27.08.2003.


    The opposite party also argued that she was intimated directly about the prize several times when she visited the 1st opposite party for the remittance of chitty subscription. To prove the contentions the opposite parties have filed 9 documents which were marked as Exts. D1 to D9. Ext. D1 is the copy of intimation letter sent by the opposite party to the complainant. In this letter opposite party stated that the chitty was bid in her favour and directed the complainant to produce sufficient surety to receive the amount. The date of letter is seen as 18.08.2003. Ext. D2 is the copy of attested copy of postal journal of uninsured registered letter of postal department.


    From this document we can see that a registered letter has been issued in the name of complainant Radhamani on 26/00/41. Ext. D4 is the copy of the letter issued by the 1st opposite party to the Head Postmaster, Post Office, Attingal. Through that letter 1st opposite party enquired with the postal authorities whether the registered letter sent by the opposite party on 22.08.2003 has been received by the complainant or not. Ext. D4 is the copy of reminder sent by the 1st opposite party to the Postal Department. Ext. D5 is the copy of letter sent by the 1st opposite party to the complainant on 25.10.2004 requesting her to receive the chitty amount with sufficient surety. Ext. D6 is the copy of postal receipt of Ext. D5. Ext. D7 is the copy of letter issued from Customer Care Centre of Postal Department on 15.01.2005.


    As per this letter, it is seen that the registered letter sent by the opposite party on 22.08.2003 to the complainant has been delivered on 27.08.2003. This document is the ample proof that there is no deficiency in service from the side of 1st opposite party. The 1st opposite party informed the matter to the complainant on 22.08.2003. Ext. D8 is the original proxy authorizing the 1st opposite party to bid the chitty in favour of the complainant. Ext. D9 is the terms and conditions of chitty.


    But the complainant did not produce any evidence to prove her statement. In this case complainant admitted that she knew the matter on 16.09.2004, but till date she never turned up to withdraw the prize money by producing surety.


    A chitty subscriber is also equally responsible to enquire with regard to the bidding of the chitty. As per Rules without the production of surety no chitty prize money will be disbursed. In the instant case, from the documents and pleadings it could be found that the complainant has never produced any surety before the opposite parties and the complainant has no case that inspite of production of sureties, she has not been given the prize money. Here only allegation is that she has not been informed with regard to the chitty prize intimation but this is controverted by Ext. D7 produced by the opposite parties.


    From the above we are of the view that the complainant has miserably failed to establish any allegations levelled against the opposite parties and moreover the allegation in the complaint are not at all justifiable. From the pleadings, documents and evidences adduced by the complainant and opposite parties we are of the view that there is no deficiency in service or unfair trade practice from the side of opposite parties. The opposite parties informed the bidding of chitty on 22.08.2003 itself to the complainant. Ext. D7 is the evidence of that registered letter delivery.


    In this case complainant was not ready to produce surety to receive the amount. The complainant did not turn up to receive the chitty amount after the lapse of 6 years. As per Ext. D9 terms and conditions of the chitty complainant was entitled to receive the amount which has been remitted by her with veetha palisa, 30 days after the termination of the chitty, i.e; the date of termination was on 17.03.2009. Hence on 16.04.2009 complainant was entitled to get the amount. As per Ext. P1 document the complainant has paid 46 instalments.

    In the result, we find that the complainant is entitled to get the amount which has been paid by her as chitty instalments with veetha palisa after deducting the commission as on 16.04.2009. But in this case complainant did not receive the amount till date. Hence the complainant is entitled to get 9% annual interest for that amount from 16.04.2009 till the date of realisation of the amount. The opposite parties are directed to pay the amount within one month after the receipt of this order. No costs or compensation are allowed.
  • adv.singhadv.singh Senior Member
    edited February 2010
    Case No. DF 57/2007

    Mohammad Ali,

    Vill.+P.O. Baro Kodali,

    Dist. Cooch Behar ……..……… Complainant


    Vs



    1. M/S Goswami Tractors

    The Manager, of N.N.Road

    Near Marapora Chowpathy,

    Cooch Behar.



    2. Escorts Limited

    The Managing Director,

    Agni Machinery Marketing Division,

    18/4, Mathur Road,

    Faridabad 121007.

    3. The Branch Manager,

    Bank of Baroda,

    Cooch Behar. ………………………... O.P.S

    The case of the Complt. in brief is that he purchased one tractor on 16.06.07 from the showroom of OP1 with the financial help of the OP2 being its Model No FTEP1-50 1 Escort Limited along with the Tool Kit bag etc but within a short Span of time it started giving problem. The trayler and casual did not work and had broken down. The Complt. informed the fact to OP but OP1 took no step for repair of the said parts. They only replaced the trayler after lapse of 13 days. But the Complt. failed to cultivate his field due to manufacturing defect of the tractor.



    The Complt. again reported the fact to OP1 who sent one Engineer of the company. The Engineer checked the tractor but was not able to remove the defect and opined that the tractor is defective one.

    The OP1 took no step to send the Engineer again to remove the defects. Legal notice was served upon OP No 1 who contacted with the Complt. and obtained Signatures in blank pages with assurance to intimate such fact to his authority.

    The OP1 knowing well sold the defective tractor and as a result the Complt. suffered loss, damage and mental pain.
    Therefore the Complt. has filed the complaint against the OP praying for relief’s as mentioned in the complainant.

    The OP No 1 is contesting the case by filing w/v and affidavit contending inter alia that the case is not maintainable in law and in its present form.

    The OP has stated that Complt. purchased the said model No FTEPI 50 ( Escort Limited ) on 16.05.07 from O.P. with financial help of OP No 3.

    When the Complt. informed that the vehicle met with an accident and the trayler and casual have been broken down then the OP repaired the parts by his own cost and the Complt. got free service.

    The OP gave services to the Complt. on 21.05.07, 14.06.07, 25.07.07 as per job instruction, and the driver and owner declared that they are satisfied for the works and services done and put their signatures on Job/ repair order card of the O.P. on 30.06.07 . The driver of the said tractor gave a fitness certificate of the tractor to the O.P.

    The OP has therefore prayed for dismissal of the case.

    The OP2 has contested the case by filing w/v contending inter alia that the case is not maintainable in law.
    The OP2 has stated that the tractors manufactured by the OP2 are delivered only after completing the process of New Delivery Inspection that the working condition of the tractor is good and the same has been done here also.

    In the present matter the defect is not a manufacturing defect and there is probability that the same occurred due to mishandling and improper use of the tractor.

    It is denied that the defective tractor was delivered to the Complt. The Engineer found it in a good working condition.

    The OP has prayed for dismissal of the case with costs.

    The pro. OP3 has contested the case by filing w/v, affidavit contending inter alia that the case is not maintainable in law.

    The OP has stated that the Complt. himself purchased the said tractor and applied to the bank which sanctioned loan. The OP bank has been made party unnecessarily.
    Points for determination


    No. (1) Whether the O.P.S sold tractor in question with mechanical / manufacturing defects ?

    No. ( 2) Whether the Complt. is entitled to get relief’s as prayed ?


    Decision with reasons

    Perused the evidences, affidavits, adduced by the parties and the documents filed on behalf of the Complt.

    Admittedly the Complt. purchased one tractor from OP No1 with financial assistance arranged by OP2 through Bank of Baroda Cooch Behar Branch.

    From the records it is found that the Complt. has put his signature at the delivery Receipt dt. 16.05.07 of OP No.1 but did not mention any grievance about the tractor and other parts supplied by the OP No.1.

    In the instant case the Complt. has said that he purchased the tractor on 16.06.07 but suffered various problems in ploughing his agricultural land due to mechanical and manufacturing defects of the tractor.

    The Complt. has alleged that within short span of time the trayler and casual of the tractor had broken and it is also noticed that the tractor has no capacity of pulling anything due to its manufacturing defect.

    The Complt. did not submit any written complaint to the O.P. but the O.P. took step on his verbal complaint.
    It is say of the OP No1 that whenever they received verbal complaint the demonstrator reached the spot to repair / replace and to help liver for controlling the hydrolic pressure of driver to lift tayler and pulling the same and furrowing the cultivated filed by the plough share of the tractor free of cost. The OP gave service as per job instruction on 21.5.07, 143.06.7 and 25.07.07. The owner and driver of the tractor were satisfied with the service rendered by OP. It is also say of OP that they also put their signatures on job/ Repair order card of the OP and the driver gave fitness certificate on 30.06.07.



    The Complt. has alleged that OP No1 sent one Engineer of the company who checked the tractor but was not able to remove defect and opined that the tractor is a defective one but there is nothing on record to show that the Engineer opined about the defectiveness of the tractor as well as about manufacturing defect

    The Complt. purchased the tractor for cultivation but the letter of Complt. dt. 8.6.07 addressing to OP3 goes to show that the tractor was used for other purpose also.
    It may be mentioned that there is no evidence on record to show that the tractor had inherent defect. The Complt. has failed to produce any expert opinion to prove that the engine and parts of the tractor was defective .
    It has been decided in a case reported in iii (2009) CPJ 283 that “ complaint allowed by Forum- Hence appeal – No evidence produced to prove inherent defect in vehicle – minor repairs done due to wear and tear of vehicle- No expert evidence produced to prove engine defective or cracks on body of vehicle – order of Form without any evidence, illegal”.

    Therefore considering materials on record we hold that Complt. has failed to prove that of OP1 adopted unfair trade practice and that the OPS caused any deficiency in service.

    Point No.2: In such a situation the Complt. is not entitled to get relief’s in as prayed for.
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