DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 12th day of December, 2019
C.D Case No. 40 of 2017
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Prasanta Kumar Senapati
S/o Jairam Senapati
Vill: Mobarakpur,
Po/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. Manager of Mahindra & Mahindra Financial Service Ltd.
Sadhana House, 2nd Floor, 570, P.B. Marg, Worli, Mumbai- 400018, India
4. Branch Manager of Mahindra & Mahindra Financial Service Ltd.
Jajpur Branch, At/Po/Ps: Panikoili, Dist: Jajpur
5. Branch Manager of Mahindra & Mahindra Financial Service Ltd.
Bhadrak Branch, At: 1ST Floor, R.C. Behera Mansion Salandi Bypass Bhadrak
…………………………..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 & 5: Sri B. K. Tripathy, Adv & Others
Date of hearing: 04.09.2019
Date of order: 12.12.2019
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 an unemployed man who made up his mind to acquire a tractor with harvester with the credit support of any financial institution for self employment in order to earn his lively hood. Accordingly he consulted with OP No. 1 for this purpose who insisted upon the complainant to purchase Mahindra Tractor 605 Arjun Model with Balker Harvester who assured to arrange financial support from Mahindra & Mahindra Financial Services Ltd. Jajpur Branch situated at Panikoili which is nearest to the complainant’s native place. OP No. 1 also disclosed the cost of the tractor and harvester is of Rs 11,75,000/- as against which the complainant has to pay a sum of Rs 4,25,000/- as margin money and Rs 84,000/- towards the cost of registration with RTO, Insurance and fitness etc. In this manner the complainant had to pay a sum of Rs 5,09,000/- which includes margin money for availing of the loan together with all other costs. Accordingly the complainant paid the demanded amount of Rs 5,09,000/- to OP No. 1 in presence of the representative of OP No. 4 and requested for quick sanction of loan. On compliance of all required formalities OP No. 4 sanctioned an amount of Rs 7,50,000/- and issued a delivery letter of tractor-cum-harvester addressing to OP No. 1 for delivery of the vehicle. OP No. 1 on receipt of the order on 27.11.2014 handed over the delivery chalan & retail invoice along with other ancillary documents but did not handover the harvester and tractor on the same day assuring that the harvester is likely to reach at dealers point after 3 to 4 days, thereafter the harvester will be handed over within a week. On good faith the complainant awaited for seven days and once again met the supplier (OP No. 1) for delivery of the harvester but returned in disappointment. In this manner OP No. 1 went on skipping the date of delivery of the so called asset and when failed to get the same, filed a written objection with OP No. 4 requesting appropriate action on OP No. 1 to force him for supply of the asset. As the complainant could not get the asset, failed to generate any income for repayment of the Equated Monthly Installment as a result of which the OP No. 4 encased the post dated cheque which was also dishonored. In this situation the complainant in order to avoid penal interest and other late payment charges, went on paying few installments even though the asset created out of the credit availed from OP No. 4 was not taken possession because of non delivery of the asset by OP No. 1. Despite all the sincere efforts made by the complainant, no positive result was yielded and finding no other way the complainant took shelter in this Forum in filing a dispute requesting a direction from the Forum to the O.Ps to make arrangement for delivery of assets and exemption of interest accrued from the date of debiting his loan account till the date of delivery of asset along with cost and compensation.
O.Ps, other than OP No. 1, objected the contents of the petition and contested the case. Although OP No. 1 has appeared before the Forum through his counsel, did not submit written version in its defense resultantly the said OP was set ex-parte. OP No. 2 challenged the maintainability of the case in this Forum as it is the manufacturer of the case tractor and no such allegation pertaining to manufacturing defect has been raised by the complainant. Therefore OP No. 2 is neither a necessary party to this case nor has caused any act amounting to deficiency of service and nor has resorted to any unfair trade practice. Hence the present OP may please be eliminated from this case. OP No. 3 to 5 have vehemently opposed the allegations of the complainant and raised the question of maintainability as the complainant is not a consumer within the meaning of CP Act and the assets so financed by the O.Ps to the complainant was for commercial purpose therefore this case is not maintainable with reference to the decision of Hon’ble Apex Court in Laxmi Engineering Works Vs. P.S.G Industrial Institute published in the A.I.R 1998. The O.Ps have submitted that on the request of the complainant O.Ps have sanctioned a sum of Rs 7,50,000/- on 28.11.2014 and disbursed the loan on the same day by placing an order to the supplier (OP No. 1) to deliver the asset to the complainant on proper acknowledgement the loan so sanctioned and disbursed was repayable in 35 EMIs of Rs 9,52,500/- which includes interest cost of Rs 2,02,500/-. An execution of relevant agreement between the parties wherein it was categorically mentioned that in the event of default in repayment and dishonor of cheques, complainant is liable to pay the cost to be incurred in the process of transaction such as late payment charges and dishonor of cheques. It is also pertinent to mention here that the complainant has repaid an amount of Rs 5,66,900/- to the credit of his loan account maintained with OP No. 4 as on 30.09.2016 and subsequently defaulted in making repayment which forced the answering O.Ps to serve notice upon the complainant to regularize the loan account on payment of arrear charges what so ever is outstanding against him. The O.Ps have also submitted that if the asset is not delivered, the complainant could have brought to notice of the O.Ps immediately so as to enable then to initiate appropriate action against OP No. 1. Secondly how the complainant could make repayment of loan to the team of Rs 5,66,900/- within a period of 2 years without taking delivery assets from OP No. 1.
On perusal of records and taking the evidences adduced by the O.Ps it is observed that there is no evidence regarding non delivery of assets by OP No. 1. The repayment made for a prolonged period of 2 years to OP No. 4 to the credit of the loan account of complainant gives a clear impression that the repayment has been made out of the income generated from the assets so acquired and as such the complainant has failed to prove his claim. It is also evident that the OP No. 1 has signed an agreement with OP No. 1 on 15.04.2015 wherein OP No. 1 has declared to deliver the assets within a period of six months. Both the concepts are very contradictory and confusing whether OP No. 1 has delivered the vehicle or not. If delivered, there was no necessity of executing an agreement with the complainant by the OP No. 1. As a matter of settled position of relevant Act, the benefit of doubt shall be in favour of the complainant. Therefore it is concluded with reference to the material evidence on record and circumstantial evidences given orally at the time of hearing it is crystal that other then OP No. 1, no other O.Ps are responsible or liable for any loss and damage caused to the complainant. Hence it is ordered;
ORDER
The complaint be and the same is allowed partly against OP No. 1. OP No. 1 is liable to pay Rs 1,00,000/- to the complainant towards augmentation of loss and Rs 10,000/- towards cost of litigation. Further OP No. 3 & 4 are directed to wave all costs and additional charges imposed, other than overdue interest, and communicate to the complainant about the exact amount to be paid by the complainant so as to enable him to make payment to the credit of his loan account. This order must be complied within 30 days from the date of order failing which interest @ Rs 7% shall be charged on the amount payable by OP No. 1.
This order is pronounced in the open Forum on this day of 12th December, 2019 under my hand and seal of the Forum.
