DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 14th day of November, 2019
C.D Case No. 14 of 2017
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Saroj Patra
S/o Bhaskar Patra
Vill/Po: Kulana,
Ps: Bhandaripokhari,
Dist: Bhadrak
……………………. Complainant
(Versus)
1. Deepak Kumar Behera
S/o Late Bairagi Behera
Partner of ‘THE WINNER’, Mahindra Tractor’s Authorized Sales Services
At: N.H 5, Nalanga, Gelpur, Bhadrak- 756181
At: Present Residing at Plot No. 2706, Brit Colony
Po/Ps: Badagada, Bhubaneswar Municipality,
Dist: Khordha
2. Manager of the Marketing Department,
Mahindra Tower, Road No. 13, Warli, Mumbai- 440018, Maharastra
3. Branch Manager of Cholamandalm Investment & Finance Company Ltd.
At: Devkunj, 2nd Floor, Main Road, Jajpur Road,
Po/Ps: Jajpur Road,
Dist- Jajpur
4. Manager of Cholamandalm Investment & Finance Company Ltd.
Dare House- 2, NSC Bose Road, Parrys,
Chennai- 600001
…………………………..Opp. Parties
Counsel For Complainant: Sri N. Sahu, Adv
Counsel For the OP No. 1: Sri J. B. Agasti, Adv & Others
Counsel For the OP No. 2: Sri S. Tripathy, Adv & Others
Counsel For the O.Ps No. 3 & 4: Sri D. K. Ray, Adv & Others
Date of hearing: 15.01.2019
Date of order: 14.11.2019
BASANTA KUMAR MALLICK, MEMBER
This dispute arises out of the complaint filed by the complainant alleging deficiency of service and unfair trade practice against the O.Ps. The facts of the this case as described in the complaint are to the effect that the complainant is moderately educated and was also unemployed prior to acquisition of a tractor for self employment in order to earn his livelihood and to manage his family. Accordingly the complainant approached the ‘winner’, an authorized dealer of Mahindra Tractors who suggested the complainant in giving an impression that the products of Mahindra & Mahindra Tractor manufacturing company is the best of all at the relevant point of time. Being impressed, the complainant made up his mind for acquisition of Mahindra make tractor on hire purchase scheme. On having heard the version of complainant, OP No. 1 immediately called the representative of Cholamandalm Investment & Finance Company Ltd. having its office at Jajpur Road who was readily present nearby who promised to provide financial/credit support to the complainant. Accordingly OP No. 1 advised the complainant to deposit Rs 1,25,000/- towards margin money for processing the loan proposal. The complainant taking much pain and strain could be able to arrange required margin money and deposited with OP No. 1 on proper money receipt issued by the dealer of the tractor. Thereafter OP No. 3 processed the loan proposal and after accomplishment of all required formalities OP No. 3 issued a demand draft for Rs 6,40,000/- in favour of OP No. 1 along with supply order directing OP No. 1 to supply the tractor on proper acknowledgement. The responsibility of registration and insurance was vested with supplier of the tractor as the amount required for the purpose was paid by the complainant in addition to the margin money of Rs 1,25,000/-. The vehicle in question was delivered on 29.06.2016 by OP No. 1 without making over the required papers such as tax invoice, registration certificate and insurance policy etc. assuring that the papers will be made available within a week as the registration and insurance of the vehicle will take a little more time to get the papers in hand. But sorry to express that till the date of filing of this dispute, neither the dealer nor the financier of the vehicle could give the papers so far so as to enable the complainant to put the tractor in work in order to generate the income for repayment of loan so borrowed. Despite repeated persuasion and sincere requests neither OP No. 1 nor OP No. 3 could make over the papers to the hands of the complainant as a result of which the tractor could not ply on the road and stood idly under the open sky. None of the sincere efforts of the complainant could yield any positive result for which the complainant failed to generate income and repay the loan installments according to the repayment schedule. Finding no other way the complainant has raised dispute in this Forum praying for a direction to the O.Ps to handover all required papers and to exempt the interest charged from the date of advance till the date of supply of papers along with cost and compensation.
All the O.Ps, other than OP No. 1, strongly objected the contents of the petition and contested the case. Although OP No. 1 appeared before the Court through his advocate but failed to submit written version within the stipulated time even till the date of hearing as a result of which the said OP is set ex-parte. OP No. 2, the marketing in-charge of manufacturing company, submitted the written version stating that it being the manufacturing company has no role to play in the matter of sale and purchase at the dealer’s point and therefore there is no cause of action, deficiency of service and no direct link with the complainant regarding the transaction made between OP No. 1 and the complainant. Hence, the complaint itself against OP No. 2 is not maintainable in the present Forum and liable to be dismissed. OP No. 3 & 4, in submitting the written version, have stated that there is no cause of action to file this dispute against the answering O.Ps nor there is any deficiency of service. The O.Ps being the non-banking finance company registered under the provisions of Companies Act’ 1956 were requested by the complainant through its branch office at Jajpur Road to provide credit support for acquisition of a tractor. Accordingly the complainant selected the dealer of the tractor at his own accord and submitted all required papers to the O.Ps for sanction of loan. After deduction of required margin money of Rs 1,25,000/- O.Ps sanctioned a sum of Rs 4,98,316/- in favour of the complainant and placed order with the OP No. 1 together with demand draft for supply of the tractor. Accordingly, on receipt of supply order, the dealer has delivered the tractor with proper acknowledgment of the complainant. Further the O.Ps have raised that this case is not maintainable as the complainant is an established business man having one more tractors which are given on hire for industrial and agricultural usage for his personal gain. Since the tractor is acquired for commercial purpose, the complainant has no scope to file a dispute under the provisions of CP Act 1986. The above statement of answering O.Ps is also supported by a decision passed by the Hon’ble National Commission in the year 2012 as “the person having more no of vehicle is not a consumer”. That apart the complainant, instated of raising the dispute before an arbitrator, has raised the same in this Forum which contravenes the terms of the agreement executed between the complainant and O.Ps and under such provision this dispute is not maintainable in Consumer Forum. Further it is also mentioned in the said agreement, any dispute between the parties shall be raised within the territorial jurisdiction of CHENNAI, not elsewhere in India. The complainant not only has violated the settled conditions of loan agreement but has also attempted not to repay the loan by virtue of this false litigation filed against the O.Ps. The complainant is a willful and chronic defaulter of the O.Ps as he is irregularly regular in making payment of EMIs which compelled the O.Ps to charge late payment charges and costs incurred for bouncing of cheques. In the above premises it is crystal that this dispute does not have any merit for adjudication and liable to be dismissed.
The complainant has prayed in the complaint to issue a direction to the O.Ps to provide him registration certificate and insurance papers of vehicle so as to enable him to put the tractor on work to get the income for repayment of loan installments. This gives a clear impression to the Forum that the vehicle is not registered so far which was the responsibility of OP No. 1 to get it done according prevailing provisions of relevant Act. In addition to that, the complainant claims to have paid the amount required for registration and insurance to OP No. 1 which is not denied as the said OP has been set ex-parte because of non submission of written version. For such reason, whatever allegation brought against the OP No. 1 in the complaint is believed to be correct and the claim raised by the complainant against the OP No. 1 seems to be genuine and correct. Secondly, as regards maintainability of this case, whatever objections have been raised by OP No. 3 & 4 are not sustainable as it is not practically possible for the complainant to move Chennai for filing a dispute covering such a big distance which is cost bearing. Such a condition stipulated in the agreement is purely arbitrary and need to be waved out from the agreement conditions. Thirdly the O.Ps have raised objection against the complainant in stating that he is having one more tractors using for commercial purposes is not substantiated by the said O.Ps as a result of which the objection of the O.Ps are not sustainable and valid.
It is a fact that OP No. 3, being the credit provider for acquisition of tractor, has not caused any deficiency in service to the complainant in respect of registration and insurance. Moreover on scrutinization of materials on record, it is observed that the complainant has submitted a Xerox copy of the insurance policy of the tractor vide No. 3380/01023353/000/00 which was operative from 29.06.2016 to 28.06.2017 proves that the OP No. 1 has insured the vehicle on the date of delivery and as such the allegation, particularly on this point, is proved to be false and fabricated. Hence OP No. 3 & 4 does not have any liability to indemnify the loss of the complainant as the insurance and registration was the transaction between OP No. 1 and complainant and whatever loss has been sustained shall be augmented by OP No. 1.
In view of the above facts and circumstances it is held that OP No. 1 is squarely responsible for the loss sustained by the complainant and also liable to compensate. Hence it is ordered;
- ORDER
The complaint be and the same is allowed ex-parte against OP No. 1. OP No. 1 is liable to pay the interest accrued on the loan amount from the date of advance till the date of order together with compensation of Rs 50,000/- and Rs 10,000/- as cost of litigation. This order must be complied within 30 days from the date of order failing which interest @ Rs 7% shall be charged on the accrued interest, compensation and cost till the date of payment.
This order is pronounced in the open Forum on this day of 14th November, 2019 under my hand and seal of the Forum.
