IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/04/2018.
Date of Filing: Date of Admission: Date of Disposal:
15.01.18 31.01.18 18.07.19
Complainant: Samsul Haque
S/o Haji Marfat Ali
Barua Nath Para, POBarua,
PS- Beldanga,
Pin- 742189
-Vs-
Opposite Party:1 . Abdus Sahid Sarkar
Agent of Kotak Mahindra Bank Ltd.
Vill. Netaji Park, Nasiyatpara Primary School
PO & PS- Islampur,
Pin- 742304
2. Chiranjib Pal Choudhury
Kotak Mahindra Bank Ltd,
Apeejay house, Block – C, 7th Floor,
15, Park Street, Kolkata – 16.
3. The Proprietor,
Radharani Automobile,
NH 34, P.O. Bhakuri,
P.S. Berhampore,PIN 742165.
Agent/Advocate for the Complainant : In Person.
Agent/Advocate for the Opposite Party Nos. 1&2 : Sri. Saugata Biswas.
Present: Sri Asish Kumar Senapati………………….......President.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
This is a complaint under section 12 of the CP Act, 1986.
One Shansul Haque (here in after referred to as the Complainant) filed the case against Abdus Sahid sarkar & two Others (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant purchased a tractor from the OP No.3 on payment of Rs.1,35,000/- for earning his livelihood by taking financial assistance of Rs.5,54,999 from Kotak Mahindra Bank Limited. The OP No. 1 and 2 are the office bearers of Kotak Mahindra Bank Limited. It appears from the statement issued by OP No. 2 that the loan was granted as per loan agreement dated 11.07.17 on condition to repay the loan amount with interest by fifty-three monthly installments @ Rs.15,200/- per month with effect from 15.08.17. Therefore, the total payment received by the OP No.3 was Rs.1,35,000/- + financed amount of Rs.5,54,999/-. But it appears from the certificate of registration issued by the registering authority, Murshidabad dated 24.08.17 that sale amount of the tractor being No.57C7950 was Rs.6,21,000/-. Therefore, it is clear that the OP Nos.1 and 2 took Rs.68,999/- more than the actual price of the tractor. After getting the information of excess payment made by the Complainant, the Complainant brought the fact into the notice of the OPs and stopped payment of EMI after paying one installment. The matter was reported to the Assistant Director, CA&FBP, Murshidabad RO but of no fruitful result. Hence, the Complainant filed the case praying for a direction upon the OPs either to return back or adjust Rs.68,999 and for compensation of Rs.30,000/- and litigation cost of Rs.1,000/-.
The OP Nos.1 and 2 contested the case by filing written version on 03.10.18 contending that the case is not maintainable. The Complainant made an agreement with the OP No.2 for loan for purchase of tractor payable by fifty-three EMI @ Rs.15,200/- and EMI amount was Rs.8,05,600/- and financed amount was Rs.5,54,999/- but the Complainant failed and neglected to pay installments as per agreement. There is no deficiency in service on the part of the OP Nos. 1 and 2 as the tractor was not purchased from the OP Nos. 1 and 2. It is clear that the OP Nos. 1 and 2 did not accept any excess amount for purchase of the vehicle. The OP Nos.1 and 2 pray for dismissal of the complaint with cost.
The OP No. 3 contested the case by filing written version on 08.02.19 contending that the case is not maintainable and the OP No.3 denied the allegations against the OP No.3. It is the specific case of the OP No.3 that the Complainant purchased a tractor for business purpose and as such the complaint is not maintainable. The Complainant paid a sum of Rs.1,35,000/- and the OP No.1 and 2 pain a sum of Rs.5,21,350/-. So the OP No.3 received a sum of Rs.6,56,350. The ex-showroom price of the tractor was Rs. 6,21,000/-. The OP No.3 paid Rs.6,480/- as road tax, Rs.4,000/- for transportation charge, Rs.5,000/- for handle and delivery charge, Rs.2,500/- settling good and Rs.5,000/- for registration at RTO, Murshidabad and a sum of Rs.12,370/- had been returned to the Complainant. The Complainant filed the case with a view to avoid payment of EMI. The OP No.3 prayed for dismissal of the complaint with cost.
On the basis of the above version the following points are framed for proper adjudication of the case :
Points for consideration
1. Isthe Complainant a consumer under the provision of the CP Act, 1986?
2. Has this Forum jurisdiction to entertain the complaint?
3. Has the OP any deficiency in service, as alleged?
4. Is the Complainant entitled to get any relief, as prayed for?
Point No.1
The Complainant submits that the case is maintainable as he hired the services of the OPs for consideration.
In reply, the Ld. Advocates for the OPs submit that the case is not maintainable as the Complainant is not a consumer. The Ld. Advocate for the OP No.3 submits that the OP No.3 has clearly asserted in Para No.9 of its W/S that the Complainant purchased the tractor for commercial purpose and the Complainant is not a consumer. It is argued that the Complainant has asserted in his written complaint that he purchased the tractor for earning his livelihood but he has not even stated that he purchased the tractor for his self employment.
We have gone through the written complaint, written versions and evidence adduced by both parties. It is asserted by the Complainant in his written complaint that he purchased the tractor on 21.06.17 for earning his livelihood. The OP No.3 has asserted in written version and its evidence that the Complainant purchased the tractor for commercial purpose. The Complainant has not even asserted that he purchased of the use the tractor for the purpose of earning his livelihood by means of self-employment. The Complainant has only stated that he purchased his tractor for earning his livelihood.
Hence, we have no hesitation to hold that the Complainant has failed to establish that he is a consumer in terms section 2( I) (d) of the C.P. Act, 1986 as he has not even denied the fact asserted by OP No.3 that he purchased the tractor for commercial purpose.
Point No. 2,3 &4
The Complainant submits that the Forum has jurisdiction to entertain the complaint and the OP Nos. 1 and 2 have deficiency in service and the Complainant is entitled to get refund/adjustment of Rs.68,999/- and compensation of Rs.30,000/- and litigation cost of Rs.1,000/-.
In reply, the Ld. Advocate for the OP Nos.1 and 2 submits that the Complainant has already sold out the tractor to one Israil Sk. by executing an agreement dated 10.04.18 and the Complainant is not entitled to get any relief in this case and the OP Nos.1 and 2 have no deficiency in service.
The Ld. Advocate for the OP No.3 submits that the OP No.3 has no deficiency in service and the Complainant is not entitled to get any relief.
We have gone through the written version, written complaint, evidence and the documents. As the Complainant is not a consumer in view of section 2 (I) (d) of the C.P. Act, 1986, the Complainant is not entitled to get any relief in this case.
Reasons for delay
The Case was filed on 15.01.18 and admitted on 31.01.18. This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders..
In the result, the Consumer case fails.
Fees paid are correct. Hence, it is
Ordered
that the complaint Case No. CC/4/2018 be and the same is hereby dismissed on the contest against the OPs without cost.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
Member
Member President.
