DISTRICT CONSUMER DISPUTES REDRESSAL FORUM;BHADRAK
……………………
C.D.Case No.53 of 2013
Sri Himanshu Sekhar Sahu, aged 34 years,
S/o: Nityananda Sahu,
Vill: Bijegangadharpur,
PO:Mouda, PS:Bhadrak(R)
Dist:Bhadrak
………………………Complainant
(Vrs)
1. The Branch Manager,
Kalinga Gramya Bank, Arnapal,
At/PO:Arnapal, Bhadrak
2. The Proprietor of Shree Govind Tractors,
Authorised Dealer, Swaraj Tractor and
Agriculture Implements,
N.H.-5, Charampa,
PS/Dist:Bhadrak
………………………Opp.Parties
Order No.33 dt.15.12.2015:
The Complainant has filed this case alleging deficiency in service against the O.Ps in providing forged R.T.O. papers.
The case of the Complainant is that he is an unemployed person and in order to earn his livelihood wanted to purchase a Tractor. Accordingly, the Complainant requested the O.P.No.1-Bank for financial assistance. The O.P.No.1 considering the genuine requirement of the Complainant granted a loan of Rs.6,70,000/- after the Complainant deposited a sum of Rs.1,70,000/-. Thereafter, the O.P.No.1 directed the O.P.No.2 for delivery of the Tractor to the Complainant. As per direction of O.P.No.1, the O.P.No.2 delivered the said Tractor to the Complainant without Kajual, Langala and relevant documents including insurance paper. As per agreement with O.P.No.1, the Complainant deposited the EMI in his C.C.Account No.41610600000303. After some days, the O.P.No.1 supplied a Xerox registration paper vide Regn.No.OR-04L-0498 and Dala Regn.No.OR-04L-09 on 20.09.2010 issued by the R.T.O., Chandikhole in the name of the Complainant and basing on such documents the Complainant paid monthly instalment in C.C.Account No. 41610600000303. Subsequently, the Complainant came to know from the aforesaid R.T.O. papers that it is a fraud one and owner of the Tractor under aforesaid Registration belongs to Tihidi P.S., Bhadrak. Thereafter, the Complainant reported this matter to O.P.No.1. The O.P.No.1 handed over another Xerox copy of Regn.No. of tractor bearing No.OD-22-1038 and Dala Regn.No.OD-22-1039 on 09.10.2012 issued by R.T.O.,Bhadrak. Further, the Complainant states that the O.P.No.1 has neither paid nor adjusted the subsidy amount against loan. The Complainant constantly requested the O.P.No.1 for supply of original R.T.O. paper against Regn.No.OR-04L-0498 and OR-04L-0449 but the O.P.No.1 finally refused on 09.01.2013 to supply the original copy. So alleging deficiency in service the Complainant filed this case on 09.04.2013 praying for a direction to O.P.No.1 to provide the statement of account and loan-cum-hypothecation agreement, original R.T.O. paper issued by Chandikhole and Bhadrak against the tractor and to deposit the subsidy amount. Further, the O.P.No.2 be directed to supply Kajuwal, Langala to Complainant. The Complainant has also claimed Rs.90,000/- from the O.Ps towards compensation for mental agony, unnecessary harassment and personal damage.
O.P.No.1 resisted the complainant and contested the claim that the complaint is based on the “fraud and forgery” which cannot be entertained by the Consumer Forum, that the case is hopelessly barred by Limitation, in as much as, the tractor loan in question has been availed by the Complainant in 10.08.2010 but the instant complaint has been filed on 10.04.2013 i.e. almost 8 months after the prescribed period of Limitation. According to O.P.No.1, it is false to say that a Xerox copy of R.C.Book (duplicate one) was provided to the Complainant. It is not the duty of the O.P.-Bank to provide the R.C.Book, rather it is the duty of the concerned R.T.O.. After availment of the vehicle (tractor), it is the lookout of the Complainant to get it registered with the appropriate authority and the O.P.-Bank has no role whatsoever in this regard. O.P.No.1 further stated that as per the request of the Complainant only, the DD of amounting Rs.6,41,000/- was issued in favour of the dealer against the invoice submitted by Complainant. As regards the allegation of non supply of “kajual”(cahge wheel) and “langal”, the O.P.No.1 submitted that the Complainant has submitted the invoice after receiving the articles from the dealer. As regards to the allegation of non-payment of subsidy amount, the O.P.No.1 stated that extension of subsidy in the instant loan account is not the look out of the O.P.-Bank. Hence, the O.P.No.1 prayed for dismissal of the complaint.
O.P.No.2, the proprietor of Sri Gobinda Tractor and the authorized dealer of SWARAJ Tractors Ltd., in his written version stated that the case is barred by Limitation. When the Complainant has alleged regarding forgery of document, the same is not maintainable before this Forum. According to O.P.No.2 the Complainant purchased a SWARAJ TRACTOR on 10.08.2010 after availing finance from O.P.No.1 at a cost of Rs.6,41,000/-. As per direction of O.P.No.1, tractor was delivered to Complainant along with Kajual, Langala, Hydraulic trailer, Jug, tiller etc. and the Complainant after signing the invoice and challan has received the same. It is false to say that the tractor was delivered to Complainant without Kajual, Langala and relevant documents in connection of the Tractor i.e. Insurance Paper, purchase bill and registration paper etc. The documents has been duly received by the Complainant and he has deposited the same with his financier i.e. O.P.No.1.The Complainant in order to avoid payment of loan dues to O.P.No.1 and for illegal gain being misguided by the dealer of other brand tractors has filed this case on imaginary facts to undermine the reputation of “Swaraj” tractor for which is liable to be dismissed.
We have perused the complaint petition, written versions of O.Ps and documents filed by both sides. Having heard both sides and upon perusal of record, it is found that the Complainant has alleged about non-receipt of Kajual, Langala and relevant vehicular documents of the purchased tractor from O.Ps and non-payment of subsidy amount. He has also alleged supply of forged vehicular particulars against the tractor in question by O.P.No.1.
During pendency of this case, the Complainant on 14.10.2014 filed a petition praying to call for statement of account, loan agreement, RTO Registration Certificate of tractor and Dala and insurance paper from O.P.No.1. O.P.No.1 filed objection on 28.10.2014 mentioning therein that the Complainant took delivery of the tractor from O.P.No.1 and has received all documents. Further, the Complainant took the tractor loan from 2010 and he is running the tractor on the road. So, all the connecting documents are available with the Complainant. However, the O.P.No.1 on 13.04.2015 filed Xerox copy of loan agreement dt.10.08.2010, statement of loan account No.41610600000303 of the Complainant(handwritten), Xerox copy of invoice No.29 dt.10.08.10 against Swaraj 735 FE tractor (Engine No. 39.1350/SNH10375S, Chassis No.WQTH31618018560) and Challan No.19 dt.10.08.2010.
At the outset, the main question which arises for consideration in the present case is, as to whether the complaint filed by the Complainant before this District forum is within time or the same is barred by limitation? It has been alleged by the O.Ps that the case is hopelessly barred by Limitation. O.P.No.1 in para-5 of his written version has stated that the tractor loan in question has been availed by the Complainant in 10.08.2010, which can be said to be date of arising of the ‘cause of action’ if at all, there is any cause of action. But the instant complaint petition admittedly has been filed on 10.04.2013 i.e. almost 8 months after the prescribed period of limitation. So the case is barred by Limitation. Section 24-A of the Consumer Protection Act, 1986, deals with Period of Limitation as follows:-
“24-A. Limitation period :-(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
The Hon’ble Supreme Court in the case of Kandimalla Raghavaiah & Co. Vs. National Insurance Company Ltd. III (2009) CPJ 75 (SC) while dealing with “Cause of Action” has observed that;
“The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as "bundle of facts", which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action" means the cause of action for which the suit is brought. "Cause of action" is cause of action which gives occasion for and forms the foundation of the suit.
Thus, Section 24-A of the Consumer Protection Act, 1986 provides that neither the District Forum nor the State Commission nor the National Commission shall admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. In the instant case, O.P.No.1 has filed copy of the Invoice No.29 dt.10.08.2010 issued by O.P.No.2 in order to bring the cause of action on 10.08.2010. On the other hand the O.P.No.1 has filed manual statement of loan account No. 41610600000303 of Himansu Sekhar Sahoo before this Forum on 13.04.2015. On perusal of the said statement of loan account, it is found that loan of Rs.5,61,000/- was credited to the account of the Complainant on 19.04.2011. So on the face of the statement of account filed by O.P.No.1, tractor loan in question has been availed by the Complainant in 19.04.2011 which is the date of arising of the ‘cause of action’. This complaint has been filed by the Complainant on 09.04.2013. As such, we are constrained to hold that the present has been filed within the period of limitation of 2 years from the date of cause of action.
From the manual statement of account filed by the O.P.No.1, it is found that the Complainant has deposited Rs.2,00,700/- starting from 21.05.2011 till18.08.2012 towards EMI. On perusal of the said statement of account it is revealed that Rs.5,61,000/- was credited to the account of the Complainant on 19.04.2011 and further a sum of Rs.3,609/- was credited to the said account on 19.04.2011 towards loan. As such total loan of Rs.5,64,609/- was credited to the account of the Complainant and as on 25.11.2014, outstanding loan dues of Complainant is Rs.6,57,082/-.O.P.No.1 has neither filed the computerized statement of account of Complainant bearing No. 41610600000303 nor the loan sanction letter in this case. Even though the tractor in question was hypothecated to Kalinga Gramya Bank, Arnapal Branch (O.P.No.1) as is evidenced from the loan agreement filed by O.P.No.1 and copy of certificate of registration, but the copy of hypothecation agreement has not been filed by O.P.No.1. It has been suppressed by O.P.No.1 for the reasons best known to him. Similarly, the O.P.No.1 debited Rs.11,982/- from the account of the Complainant on 18.11.2014 towards insurance premium but no copy of insurance has been filed by O.P.No.1.
It is the case of the Complainant that the O.Ps have not provided him the original registration certificate of the tractor in question and also 9 tyne Tiller and heavy duty cage wheel by the O.P.No.2 although he has received cost of the material as per invoice No.29 dt.10.08.2010 and challan No.19 dt.10.08.2010. According to O.Ps the Complainant has received all the accessories as per invoice and challan. Admittedly, the Complainant has put his signature on the challan No.19 dt.10.08.2010 of O.P.No.2 under the printed format “Received the Vehicle/Impliments in good condition and upto my satisfaction”. We do not understand why someone after receipt of accessories of the tractor from the dealer, he will subsequently raise the question of non-receipt of the same? So, we are convinced that the O.P.No.2 has not provided the Complainant accessories such as 9 tyne Tiller and heavy duty case wheel taking the advantage of printed endorsement made on his challan. Such act on the part of O.P.No.2 amounts to deficiency in service.
The main question is whether the O.Ps have provided the vehicular particulars to Complainant in order to ply the tractor on the road? The Complainant in his petition has stated that the O.P.No.1 only provided him Xerox copy of registration paper vide Registration No. OR-04L-0498 for Tractor and Regn.No.OR-04L-09 for “Dala” on 20.09.2010 issued by the R.T.O., Chandikhole in the name of the Complainant belonging to a person under Tihidi P.S.. Subsequently, the Complainant reported this matter before O.P.No.1, who again supplied another Xerox copy of registration paper vide Regn. No.OD-22-1038 for Tractor and Regn.No.OD-22-1039 for “Dala” on 09.10.2012 issued by R.T.O., Bhadrak. The Complainant has filed Xerox copy of vehicle checking report dt.27.02.2013 issued by Traffic Inspector(OMVD),Bhadrak and imposition of penalty of Rs.8,800/- on the Complainant for plying the tractor without R.C.,F.C., I.C. etc., certified copy of registration certificate issued by RTO,Bhadrak-2 sheets and certified copy of registration certificate issued by RTO,Chandikhole-2 sheets. It is really astonishing how two registration numbers i.e. OR-04L-0497 and OR-04L-0498 for tractor and trailer by R.T.O., Chandikhole and Regn.No. OD-22-1038 and OD-22-1039 for tractor and trailer by R.T.O., Bhadrak have been issued against a particular tractor with trailer having engine number and chassis number same? In both the registration certificates, tractor has been hypothecated to O.P.No.1-Bank. It is found from the certified copy of Regn.Certificate against Regn.No.OD-22-1038 for tractor that the date of purchase is 13.02.2012. As per endorsement made by R.T.O., Bhadrak that the said certified copy was issued on 24.01.2013 to produce before Insurance Office. If the tractor bearing Engine No. 39.1350/SNH10375S and Chassis No.WQTH31618018560 was sold to Complainant on 10.08.2010 by O.P.No.2 and received by Complainant as per challan No.19 dt.10.08.2010, how the certified copy of registration certificate issued by RTO,Bhadrak speaks that Engine No. 39.1350/SNH10375S and Chassis No.WQTH31618018560 was purchased on 13.02.2012 ? So we are convinced that two registration numbers by two R.T.Os. is not possible against a particular tractor having same engine and chassis number. For the above reason, no Original Registration Certificate and insurance paper of the Tractor was supplied by O.Ps 1 & 2 for which the Complainant could not ply the same on road and whenever plied he was imposed with penalty by Transport Authority as is evidenced from VCR dt.27.02.2013 issued by Traffic Inspector(OMVD),Bhadrak. So the O.Ps have committed deficiency in service and adopted unfair trade practice in supplying tractor to Complainant. Unfair trade practice as defined under Section 2(1)(r)(1) of the C.P.Act is extracted below:
“(r) unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely;—
(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;”
For the foregoing reasons, we are convinced that the O.Ps 1 & 2 are guilty of both deficiency in service and unfair trade practice in providing a second hand , renovated, reconditioned or old tractor & trailer as new one. Hence, it is ordered:
O R D E R
In the result, complaint is allowed on contest against O.Ps 1 & 2. The O.Ps are directed to refund the deposited amount (Margin money/down payment) made by the Complainant at the time of availing tractor loan and to take back the tractor in question. The O.P.No.1 is directed to waive out the total loan amount in favour of the Complainant and to return the land documents kept as security and issue “NOC” accordingly. Further, O.Ps 1 & 2 are directed to pay compensation of Rs.20,000/-, jointly and severally, towards financial loss and mental agony suffered by Complainant. The aforesaid directions be complied with by the O.Ps 1 & 2 within a period of 30 days of receipt of this order.
