West Bengal

Birbhum

CC/141/2015

Abdul Halim, S/O Lt Nabiot Mondal - Complainant(s)

Versus

Auth Dealer Standard Tractor, Nirmal Mukherjee - Opp.Party(s)

Sanjit Kr Acharya

21 Oct 2022

ORDER

Smt. Sukla Sengupta .President.

            The complainant files the instant petition of complaint Under Section 12 of the Consumer Protection Act, 1986.

            Submitting inter alia that he is a resident of Village- Kanakpur, Post- Bhimpur, P.S.- Murarai, Dist.- Birbhum, situated within the jurisdiction of this Forum/Commission.

 It is further stated that the complainant purchased a tractor for betterment of cultivation from the OP No. 1 who is the dealer of OP No. 2 (manufacturer).

He purchased the tractor exchanging Tata Sumo Car being No. W.B-027453 owned by his son Rofikul Hasan and with the financial assistance of OP No. 3.

            It is further stated that he paid Rs. 3,25,000/- as his own investment. The value of the tractor including rotar was  Rs. 9,10,000/- and the OP deducted Rs. 1,30,000/- as concession and as such the rest amount of Rs. 4,55,000/- was financed by the OP No. 3.

            The complainant further stated that he used to pay the installment to the OP No. 3 regularly. It is also the case of the complainant that the value of the rotar of Rs. 1,00,000/- has been included within the tractor value, but the rotar has not yet been delivered him till date.

      

It is alleged that the OP did not made any arrangement for registration of the vehicle and did not issue any T.C.R. against the vehicle being chasis No. 355 EOM 022961 and engine No. 3105 TEOM 023163 since 26/11/2014 to till date and they did not deliver the cash memo, invoice, insurance policy, warranty card ete.

 The complainant had been OP No. 1 and requested to deliver the same but he did not pay any heed on the complainant is request as such the complainant could not be able to ply the tractor on the road and it caused financial loss to the complainant since 26/11/2014.

            It is further alleged by the complainant that the battery of the vehicle was damaged within 11 months and the complainant reported the matter to the OP No. 1, but they did not replace the same.

The engine penium was broken of limini, paint of vehicle of fade, so from the aforesaid defect it cannot be said that the vehicle was new one entirely as such the act of the OP is/was amounting to unfair trade practice as they deliver an old vehicle and defective tractor in the name of new one.

            It is also alleged by the complainant that he did not get the free service for the said vehicle only ½  free service has been rendered to him, and he did not get the rest part of the service.

            It is also the allegation of the complainant that the hydraulic oil in new tractor was not good the oil seal was leakage and P.T.O. seal was broken. The matter was informed to the OP No 1 then they sent a man who inspected the vehicle and asked to change the vehicle’s hydraulic oil and P.T.O. seal but did not take any measure to change the same during the warranty period. The complainant purchased the P.T.O. seal and after a long period the Op changed the P.T.O. seal and the said act of the OP also amounts to deficiency in service and caused damaged to the complainant.

            So, in view of the above stated facts and circumstances the OP No. 1 and 2 caused deficiency in service to the complainant and also caused unfair trade practice.

 Hence, the instant application is filed by the complainant with a prayer to direct the OP to replace the vehicle by new one with rotar and to pass an order to direct the OP to delivered registration, T.C.R., cash memo, insurance certificate and invoice and also to direct the OP to pay Rs. 2,00,000/- as compensation along with litigation cost of Rs. 10,000/- and other relief/reliefs.

Initially the complainant has filed the petition of complaint against the OP No. 1,2 and 3. Subsequently he could not be able to serve the notice upon the O No. 2. Even after getting several opportunities as a result he prayed for expunging the name of the OP No. 2 from the cause title.

The prayer was considered and allowed by this Forum/Commission vide it’s order dated 08/06/2017.

The OP No. 1 and 3 have contested the claim application by filing separate written version denying all the material allegations leveled against them.

The OP No. 1 in his written version has stated categorically that the complainant has no locus standy to file this case because there is no cause of action to file this case.

He further stated that the case is not maintainable at all as per law in it’s present form and the petition of complaint is not at all maintainable under the provision of Section 12 of the Consumer Protection Act, 1986.

It is the further case of the OP No. 1 that he delivered the vehicle in question to the complainant in good condition on 26/11/2014 and the complainant/petitioner has acknowledged the same and he was running the tractor/vehicle in question without having any complain. But subsequently he reported the OP No. 1 company for servicing of the vehicle and it was performed as per terms, rule and procedure by the OP Company so the question of negligence of deficiency in service on the part of the OP No. 1 does not arise at all.

It is also denied that there was the warranty period of 5 years and the OP No. 1 challenged the complainant to produce the document to that effect. As per Ops case the complaint files the false case without having any cause of action. Thus the same is liable to be dismissed with cost.

The OP No. 3/SBI Nandigram Branch has contested the petition by filing a separate written version denying all the material allegations leveled against it.

It is also the case of the OP No. 3 that the case is not maintainable in the eye of law and the complainant files this case with ulterior motive and to cause mischief to the OP No. 3 Bank.

The OP No. 3 further alleged the complainant fraudulently filed this case suppressing the material facts. It is admitted by the OP No. 3 that the Bank has financed a sum of Rs. 4,55,000/- for the purpose of purchasing the vehicle in question.

It is further stated by the OP No. 3 that the bank has no liability or responsibility to make any payment of compensation to the complainant and the petition of complaint. Rather there is no deficiency in service on the part of the OP No. 3.

            So, the petition of complainant is baseless and liable to be dismissed with cost.

In view of the above stated fact and circumstances following issues are framed:

Issues

1. Is the case maintainable in its present form and law?
2. Has the complainant any cause of action to file this case?
3. Is the complainant is a consumer as per CP Act 1986?
4. Is there any deficiency in service on the part of the OP?

5. Is the complainant entitled to get the compensation as prayed for?
6. To what other relief or reliefs is the complainant entitled to get?

  Decision with reason.

                        All these issues are taken up together for convenience of discussions and to avoid unnecessary repetitions.

                        Admittedly both the complainant and the OP No. 1 and 3 are residing and running the business under the jurisdiction of this Forum/Commission.

                         From the written version of both the OP No. 1 and 3 it appears that admittedly the complainant has purchased the vehicle in question from the OP No. 1 on 26/11/2014 on payment of Rs. 3,25,000/- as his own investment and the financer OP No. 3 paid of Rs. 55,000/- out of total valuation of Rs. 9,10,000/-.

                        So, cause of action arose on 26/11/2014 on and from the date of purchase of vehicle in question. On a close scrutiny of the materials on record it appears that the valuation of the subject matter of this case is within the permissible limit of this Forum/Commission.

                        It is already discussed that the cause of action arose on 26/11/2014 and the case has been filed by the complainant before this Forum/Commission on 01/12/2015 which is well within the period of limitation.

                        In view of the above made discussions it is held by this Commission in a nut shell, that the case is maintainable in it’s present form and law, this Forum/Commission has jurisdiction to try the same and there was sufficient cause of action to file this case.

                        It has already been discussed made above that this the admitted position that on 26/11/2014 the complainant purchased the vehicle in question i.e. a tractor by exchanging Tata sumo Car bearing No. WB-027453 from the OP No. 1 Financed by the OP No. 3 at a total consideration of Rs. 9,10,000/-. From which it can be safely be held by this Forum/Commission that the complainant is a consumer within the OP members and the OP members are the service provider.

                        During the course of argument Ld. Advocate for the complainant argued and it is also revealed from the prayer portion of the complaint that the complainant has no claim against the OP N o. 3 Financer Bank. So, the following discussions will be only in between the OP No. 1 and the complainant. Whether there was any deficiency in service on the part of the OP No. 1 admittedly the complainant has purchased the vehicle in question from the OP No. 1.

                        On a close scrutiny of the evidence on record and the argument as advanced by the Ld. Advocate for the complainant. It is revealed that since purchasing of the vehicle from the OP No 1 the complainant was taking different type of problems to run the vehicle on road. The battery was defective the hydraulic oil and the P.T.O. seal was also defective and the OP No. 1 did not change the same even within the warranty period. Though the OP No. 1 in his written version and argument denied that there was warranty period of five years but that they did not complete all the proposed free servicing of the vehicle in question during the warranty period but without denial against denial the OP No. 1 failed to prove the same in support of any documents from it’s end.

                        From the content of the written version and written argument as filed by the OP No. 1 it is palpably clear that the OP No. 1 did not replace the vehicle by supplying a new one to the complainant as per his demand. Which should be considered as the deficiency in service and unfair trade practice on the part of the OP No. 1 for which the OP No. 1 should be liable to compensate the complainant.

                        In view of the discussions made by above it is opined this Commission that the complainant on so many occasions requested the OP No. 1 to replace the vehicle, but the OP No. 1 did not pay any heed to his request in spite of having knlowdge about the incident he handing over a defective vehicle to the complainant. Moreover it is also proved from the facts and circumstances of the case and evidence on record that the OP member did not hand over the registration, T.C.R., cash memo, insurance certificate and invoice to the complainant at the time of purchase of the vehicle in question. From such conduct of the OP No. 1 it is proved and established beyond reasonable doubt that there was deficiency in service on the part of the OP No. 1 to the complainant/consumer.

                        Hence, the complainant could be able to prove his case beyond shadow of all reasonable doubt and is entitled to get the relief as prayed for.

                        The case is properly stamped.

                        All these issues are thus decided in favour of the complainant.

                        Hence, it is,

                                    O R D E R E D,

                                                            that the instant C.C. Case No. 141/2015 be and the same is decreed on contest against OP No. 1 with cost.

The complainant do get the decree in part as prayed for.

The OP No. 1 is directed to replace the defective vehicle by new one with rotar and also directed to hand over the registration, T.C.R., cash memo, insurance certificate and invoice of the vehicle to the complainant indefault the OP No. 1 is directed to pay the valuation of the vehicle of a sum of Rs. 9,10,000/- (Nine lakh ten thousand only).

The OP No. 1 is directed to pay compensation of Rs. 1,00,000/- (One lakh only) along with interest @9% p.a. from the date of filing of this case till realization of the amount to the complainant for his financial loss, harassment, mental pain and agony.

The OP No. 1 is also directed to pay a sum of Rs. 10,000/- (Ten thousand) only to the complainant as litigation cost.

The OP No. 1 is directed to pay the entire decreetal amount within 45 days from this date of order in default the complainant is entitled to get further interest @ 6% p.a. on the entire decreetal amount form the date of default till realization of the entire amount.

If the OP No. 1 is failed to comply the decree as per direction of this Commission within 45 days from this date of order then the complainant is at liberty to execute the decree as per law.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.