DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SUBARNAPUR
C.D. Case No.16 of 2016
Akshya Kumar Sa, S/o. Gobinda Sa, aged about 37 years, Occupation – Cultivation, R/o. village and P.O. – Deulpadar, P.S. Tarbha, District – Subarnapur.
………….. Complainant
Vrs.
1. Sananda Behera, aged about 38 years, S/o. Sradhakara Behera, Prop. M/s. Behera Tractors, Authorised Dealer of Mahindra Gujarat Tractor, At – In front of Poddar Petrol Pump, N.H.-42, Bhatra, Dhanupali, P.O./P.S. Dhanupali, District – Sambalpur (Odisha). Permanent address R/o. Gahirpali, P.O. Godloisingha, P.S. Jujumura, District - Sambalpur.
2. Branch Manager, Andhra Bank, Sonepur Branch, R/o. Sonepur town, P.O./P.S. Sonepur, District - Subarnapur.
………….. Opp. Parties
Advocate for Complainant ………. Sri N.K.Tripathy
Advocate for the O.P. No.2 ………. Sri B.C.Panigrahi
Present
Sri S.C.Nayak, President
Smt.S.Mishra, Lady Member
Sri H.Padhan, Male Member
Date of Judgment Dt.06.12.2017
J U D G M E N T
By Sri S.C.Nayak, P.
This is complainant’s case alleging deficiency of service on the part of the O.Ps.
The case of the complainant is a nutshell is described below. The complainant applied before the O.P. No.2 for financial help to purchase Tractors and Trailor for his cultivation work. The O.P. No.2 told the complainant to supply quotation and estimate. Accordingly the complainant went to O.P. No.1 to obtain quotation and estimate. The O.P. No.1 supplied quotation and estimate amounting to Rs.6,99,517/-. Complainant submitted said quotation, estimate and other documents to O.P. No.2. The O.P. No.2 sanctioned the said loan in favour of the complainant vide letter No.1449/ATL/Tractor/18/RPDD dt.17.1.2014.
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According to the credit facilities of the loan Rs.5,10,000/- was the financed amount which was paid to O.P. No.1 by the O.P. No.2. The O.P. No.1 also duly received the said amount and provided money receipt vide No.BT 128 13/14 dt.18.1.2014. The complainant has also paid Rs.1,79,517/- to the O.P. No.1 as margin money. The O.P. No.1 duly received the same and provided money receipt to the complainant vide BT 124 dt.29.12.2013. The rest amount of margin money was paid by the complainant to O.P. No.1 on 18.10.2014. The O.P. No.1 has already received the entire amount as per quotation supplied to the complainant. On 18.10.2014 the complainant went to O.P. No.1 to receive the tractor and trailor. But the O.P. No.1 only provided a money receipt and expressed his inability to supply tractor on the plea of that there is no stock of tractor.
Thereafter, on several occasions the complainant approached the O.P. No.1 to supply tractor and trailor, but the O.P. No.1 has not supplied the same. Now the O.P. No.2 is claiming the over due amount of Rs.7,20,000/- out of the aforesaid loan.
The complainant alleged that he has suffered huge loss due to non supply of tractor. He has therefore prayed that the O.P. No.1 be directed to supply tractor and trailor with all documents. The O.P. No.1 be directed to pay the entire bank dues of the complainant with appropriate interest. The O.P. No.1 be directed to pay Rs.8,00,000/- to the complainant towards mental agony, suffering and allied factors. He has also claimed Rs.10,000/- from the O.P. No.1 towards cost of litigation.
The O.Ps. were noticed in this case. The O.P. No.2 has filed version. Despite several opportunities given for the purpose, the O.P. No.1 has not filed any version for reason best known to him.
The O.P. No.2 in his version has admitted to sanction loan to the complainant. But the O.P. No.2 has denied the fact that the complainant has approached him several times for supply of tractor and trailor. This O.P. has also denied that the O.P. No.1 in his presence refused to supply the tractor and trailor to the complainant. This O.P. further contends that he has not committed any deficiency of service and this case is bad for mis-joinder of party.
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We have heard Mr.N.K.Tripathy, learned counsel for the complainant and Mr.B.C.Panigrahi learned counsel for the O.P. No.2. The O.P. No.1 remained absent during hearing. We have carefully heard the argument of the learned counsels and perused the materials on record. On the inter-se pleadings of the parties and submissions of learned counsels during hearing the following issues are framed.
1. Is the case bad for mis-joinder of parties ?
2. Have the O.Ps. committed deficiency of service ?
3. To what relief the complainant is entitled ?
ISSUE NO.1 :
Mr.Tripathy, learned Counsel for the complainant reiterated the stand taken by the complainant in his complaint petition. Per contra Mr.Panigrahi, learned Counsel for O.P. No.2 submitted that the O.P. No.2 ought not to have been made a party in this case as he has no role to play in this delivery of the vehicle. This submission is noted to be rejected.
The O.P. No.2 may not be a necessary party in this case, but he is a proper party. The distinction between a necessary party and proper party is well known. In Udit Narain Singh Mahapatra Vrs. Addl. Member Board of Revenue, Bihar and Another, A.I.R. 1963 S.C. 786, the Apex Court held that a necessary party is one without whom no order can be made effectively, a proper party is one in which absence an effective order can be made but whole preference is necessary for a complete and final decision on the decision involved in the proceeding. In the case at hand, since the O.P. No.2 is the financing bank and has sanctioned loan to the complainant presence of O.P. No.2 is necessary for a complete and final decision in this case. So we are of the considered opinion that the O.P. No.2 is a proper party in this case. As such argument of learned counsel for O.P. No.2 on this score is over ruled.
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ISSUE NO.2 & 3 :
Both these issues are taken together as they are inter-related. Mr. Panigrahi learned counsel for the O.P. No.2 vehemently argued that the O.P. No.2 has not committed any deficiency of service. There is force in the submission of the learned counsel as we find that the O.P. No.2 has no role to play in the delivery of the vehicle. For the reason stated supra we are not in a position to fix any liability on the O.P. No.2. So the said O.P. is freed from the liability.
Now, it is to be seen whether there has been deficiency of service on the part of the O.P. No.1 or not. We have perused the money receipts filed in this case. The O.P. No.1 has received Rs.5,10,000/- vide M.R. No.BT 128 13/14, Rs.1,79,517/- vide M.R. No.BT 124 dt. 29.12.2013 and Rs.10,000/- vide M.R. No.127/13-14 dt.18.10.2014. So the entire amount mentioned in his quotation and estimate has been received by the O.P. No.1 It has shocked out judicial conscience that inspite of receiving such huge amount also, the O.P. No.1 has not supplied the tractor and trailor to the complainant. So we are of the considered opinion that this is a clean case of deficiency of service on the part of the O.P. No.1.
Now it is to be seen to what relief the complainant is entitled. Since the O.P. No.1 has received the entire amount of quotation and estimate. We direct him to close the loan account of the complainant by paying the loan amount and the accrued interest, penal interest and other charges thereon and make the tractor and trailor of the complainant loan free. The complainant has also claimed Rs.8,00,000/- towards compensation. Taking the totality of the facts and circumstances into consideration we are of the considered opinion that a consolidated sum of Rs.2,00,000/- (Rupees Two Lakhs) only as composite compensation for mental agony, harassment and allied factors would meet the ends of justice. The complainant is also entitled to Rs.3000/- towards cost of litigation. We direct the O.P. No.1 to pay this amount to
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the complainant. The O.P. No.1 is also directed to get the registration and insurance of the vehicle done at his own cost and handover the documents to the complainant alongwith the tractor and trailor. We order accordingly.
O R D E R
It is hereby ordered as follows :-
1. The O.P. No.1 shall deliver the tractor and trailor to the complainant after getting the registration and insurance of the vehicle done at his own cost. At the time of delivery of the vehicle, the O.P. No.1 is also directed to handover to the complainant all relevant documents like R.C. Book, insurance cover note etc.
2. The O.P. No.1 is directed to make the tractor and trailor loan free by making payment of the loan amount of the complainant alongwith accrued interest, penal interest and other charges thereon.
3. The O.P. No.1 is also directed to pay to the complainant Rs.2,03,000/- (Rupees Two Lakhs and Three thousands) only towards compensation and cost of litigation.
All these should be done within one months from the date of order. Complaint is allowed.
Dated the 6th December 2017
Typed to my dictation
I agree. I agree. and corrected by me.
Sri H.Pradhan, Smt.S.Mishra, Sri S.C.Nayak
Male Member Lady Member President
Dt.06.12.2017 Dt.06.12.2017 Dt.06.12.2017
