DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 30th day of September, 2019
C.D Case No. 17 of 2018
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Brundaban Nayak
S/o Late Bhagirathi Nayak,
Vill/Po: Balibarei,
Ps: Soso,
Dist: Keonjhar
……………………. Complainant
(Versus)
1. Basanti Auto Agency, Charampa
Near Fire Station, NH- 5,
Through its Authorized agent Sanjay Kumar Pani,
Near Charampa College Square, NH- 5, Bhadrak
2. General Manager, Mahindra Finance, Head Office,
At; First Floor, Plot No- 511, Cuttack Puri Road,
Beside Punjab National Bank, Mancheswar Industrial Estate,
Bhubaneswar- 10, Dist; Khordha
3. The Branch Manager, Mahindra Finance Bhadrak Branch,
First Floor, Behera Mansion, Near Slandi By-pass,
Mathasahi, Po/Ps/Dist: Bhadrak
…………………………..Opp. Parties
Counsel For Complainant: Sri A. Mohanty & Others, Adv
Counsel For the O.Ps No. 1: Sri B. Sahoo (B), Adv
Counsel For the O.Ps No. 2 & 3: Sri B. K. Tripathy, Adv
Date of hearing: 20.05.2019
Date of order: 30.09.2019
BASANTA KUMAR MALLICK, MEMBER
This dispute arises out of the complaint filed by the complainant alleging deficiency of service and unfair trade practice.
The facts of the complaint are to the effect that the complainant is an young man having driving license was persuaded by the O.Ps to purchase a 9-seater bolero + vehicle. As the complainant was in intention to purchase such a vehicle for his own use and after getting the proposal, complainant expressed his willingness to acquire the said vehicle with the credit support to be provided by OP No. 2 & 3 as proposed by them. Accordingly the complainant deposited a sum of Rs 90,000/- including first installment of the loan as against the total cost of vehicle of Rs 7,90,095/- and there after the OP No. 2 & 3 sanctioned the loan and placed delivery order with OP No. 1 requesting him to deliver the vehicle. It was the commitment of the supplier as well as the finance providers to get the registration and insurance of the vehicle free of cost but surprisingly after execution of all relevant documents OP No. 2 & 3 demanded payment of registration and insurance charges from the complainant and the complainant being undone, paid the amount for registration and insurance as per demand of O.Ps. When the complainant went to OP No. 1 to receive the vehicle, the O.Ps once again demanded for payment of Rs 1,03,401/- for delivery of the vehicle which was not instantly complied. After a couple of days the complainant paid the amount to OP No. 2 but instead of making delivery of vehicle, the OP No. 2 took the complainant to the office of the OP No. 3 who demanded payment of Rs 93,401/- for delivery of the vehicle which was also complied by the complainant. As it was orally agreed between the parties to made over the registration certificate and insurance papers at the time of delivery of the vehicle but the O.Ps did not do so and assured to handover those papers within a week after the promised date as the process of preparing such papers would consume a little more time. Despite repeated requests the O.Ps did not supply the papers such as insurance policy and registration certificate as a result of which the vehicle so purchased with the credit support of OP No. 2 could not ply on the road and the complainant suffered a lot to make repayment of EMIs regularly as prefixed but under compulsion went on making payment of the installments out of his own savings. Finding no other way the complainant filed this dispute praying for a direction to the O.Ps to handover the registration certificate etc. and to pay @ Rs 500/- per day from the date of delivery of the vehicle till the date of order along with compensation of Rs 50,000/- for mental agony and harassment.
O.Ps resisted the claim of the complainant and contested the case. OP No. 1, in submitting the written version, has raised the question of barred by limitation, maintainability and cause of action. It is also added by the answering OP that the entire complaint is frivolous and vexatious which requires dismissal by the Forum. OP No. 1 has also pleaded that he had neither taken any responsibility of getting the vehicle registered and to get the vehicle insured or he has not assured the complainant to provide the mentioned papers to the complainant at the time of delivery of the vehicle. It is further supplemented that the answering OP has not caused any deficiency of service and no cause of action is there to file this case in the Consumer Forum. The answering OP has also stated that he has supplied the vehicle by the order placed and D.D received from OP No. 3 and has also supplied the vehicle as specified in the delivery order to the complainant who has acknowledged receipt of the vehicle in good condition. The allegations brought in the complaint against OP No. 1 is nothing but an imaginary story plotted by the complainant to extract money from the answering OP on false ground. Hence the entire complaint against OP No. 1 is bereft of merit and liable to be dismissed with exemplary cost.
OP No. 2 & 3 submitted the written version through their advocate wherein it is submitted that the case is not maintainable in Consumer Forum as because the complainant is not a consumer within the meaning of CP Act for the reason that the complainant is using the vehicle for commercial purpose. Secondly the Hon’ble Apex Court in the case of LAXMI ENGINEERING WORKS Versus P.S.G. INDUSTRIAL INSTITUTE, (AIR 1998 SC 1428) has clearly held that if any person purchases any goods for commercial purpose and to use the same for earning profit, such person is excluded from the preview of the CP Act 1986. It is also submitted by OP No. 2 & 3 (hear in after said as “O.Ps”) in stating that they have not caused any deficiency of service nor have resorted to any unfair trade practice and no cause of action is there which would give a scope to the complainant for filing of this case rather the complainant has violated the terms and conditions of loan agreement executed between the parties at the time of documentation. Further it is also submitted that the vehicle in dispute was financed by the answering O.Ps on the request of the complainant and on compliance of all requirements as essential under hire purchase scheme. The role of the O.Ps was limited to the extent of issue of demand draft in favour of the supplier of vehicle selected by the complainant and till receipt of tax invoice from the supplier with the acknowledgement of the complainant stating to have received the vehicle in good condition. The O.Ps are not responsible for registration and insurance of vehicle which is the joint responsibility of dealer (supplier) and the receiver (complainant). As such, if any problem arose on the mention points is not the statutory duty and responsibility of the financer. Therefore the O.Ps have been dragged to this unnecessary dispute, may be with ulterior motive, to cause delay or linger or to avoid the payment of periodical installments as fixed in repayment schedule. Further the answering O.Ps have also submitted that they have advanced a sum of Rs 7,50,000/- to the complainant which is repayable in 60 monthly installments commencing from 19th August 2017 @ Rs 18,310/- per month till the loan account is liquidated. In the event of any late or inadequate payment, the complainant is liable to pay late payment charges and overdue interest according to terms of the loan agreement executed between the parties. In the above premises it is crystal clear that the allegations made against the O.Ps do not bear any merit and liable to be dismissed.
Evidently, the complainant had selected the dealer of the vehicle after setting his mind to purchase a 9-seater Mahindra Bolero with the credit support of a financing company for which the complainant requested Mahindra Finance Ltd. situated at Bhadrak for providing financial support which was agreed by the said financial company subject to condition of compliance of required formalities by the complainant. On compliance of stipulated conditions, the O.Ps sanctioned and disbursed the loan of Rs 7,50,000/- in shape of demand draft in favour of the supplier with an order for delivery of the specified vehicle. Accordingly the supplier has also supplied the vehicle on proper acknowledgement of the complainant specifically in stating that the vehicle was received by him in good condition. Besides above facts, all other allegations of the complainant have been disputed by the O.Ps.
Gone through the facts narrated in the complaint, written versions of O.Ps, perused material evidences on record, heard all the parties in course of hearing and observed as detailed bellow.
1. The complainant claims to have paid a sum of Rs 1,03,401/- to the OP No. 1, the dealer of the vehicle, towards down payment and the charges towards registration of vehicle as well as premium of the insurance policy. As decided earlier between OP No. 1 and the complainant, it was assured by OP No. 1 to handover the registration and insurance papers which was not practically done at the time of the delivery of the vehicle on the plea that the papers are not in hand instantly and the same would be supplied within a week positively. But despite several requests the OP No. 1 neither made over the papers nor responded the complainant as a result of which the vehicle so purchased under hire purchase scheme could not be made on road for generation of income. On the other hand OP No. 1 opposed in stating that it was neither the finance provider of the vehicle nor it has got any authority to receive the amount from the complainant. Had it been a fact, OP No. 1 would have issued the money receipt to the complainant against such payment in acknowledging receipt of amount which is required to be furnished before the learned Forum. But the complainant has not yet submitted any such document to prove his allegation regarding payment of required amount to OP No. 1 for insurance and registration of vehicle.
On perusal of materials on record it is observed that the complainant has not furnished any evidence in order to prove his payment to OP No. 1 towards registration and insurance. Hence it is proved that the complainant has utterly failed to prove the allegation. Further nowhere OP No. 1 is found deficient in providing proper service to the complainant nor adopted any unfair trade practice in course of the transaction with the complainant.
2. The complainant has alleged against the O.Ps regarding the payment of Rs 90,000/- at the first phase to OP No. 1 and Rs 93,401/- to OP No. 3 before taking delivery of the vehicle, total of which comes to Rs 1,83,401/- which is vehemently opposed by all the O.Ps in stating that the complainant has admitted in Para- 4 of the pleadings as to he has paid total amount of Rs 1,03,401/- which is self contradictory. The complainant is not sure of the amount he has exactly paid to the O.Ps. This confusing statement made in the pleadings by the complainant proves that he has not paid any amount to the O.Ps as mentioned in the complaint or the complainant has furnished the false and hypothetical data regarding the amount of payment made before taking delivery of vehicle.
On perusal of materials on record it is understood that the O.Ps demanded for payment of Rs 1,03,401/- as against which the complainant claims to have paid Rs 1,83,401/- which is unrealistic and there is no reason to believe such payment made by the complainant before taking delivery of the vehicle. Furthermore it is also observed from the record that the complainant has persistently defaulted in payment of the loan installments as a result of which the complainant has violated the terms of the agreement right from payment of second installment he is liable for overdue interest, late payment charges and other charges including cheque bouncing cost.
3. In course of hearing of the case the complainant raised allegation against the O.Ps in stating that the Hon’ble Forum issued an interim order on dt. 20.03.2018 with a direction to the O.Ps not to repossess the vehicle in dispute and issued the copy of the interim order along with notice by registered post with AD on the same day and the O.Ps violated the order and repossessed the vehicle without caring for such order. On perusal of materials on record it is observed that the notice with interim order has been issued on the date mentioned above and the complainant has filed an execution case vide No. 15 of 2018 for not complying interim order dt. 20.03.2018. It is therefore felt unnecessary to discuss about the said execution case as it is pending with this Forum for disposal and therefore such allegation regarding violation of interim direction is ignored in order to discuss this same in details in the execution case separately.
From the above analysis of facts and findings this Forum reached at the conclusion that the complainant has utterly failed to prove his case and the O.Ps have neither caused any deficiency of service nor adopted any unfair trade practice for which the O.Ps are made free from the allegations.
ORDER
In the result the complaint be and the same is dismissed and in the circumstances without cost.
This order is pronounced in the open Forum on this 30th day of September, 2019 under my hand and seal of the Forum.
