DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: BHADRAK : (ODISHA).
Consumer Complaint No. 74 of 2019.
Date of hearing : 27.05.2024.
Date of order : 16.07.2024.
Dated the 16th July, 2024.
Smt. Lopamudra Bhuyan, W/o:-Surendra Bhuyan,
At:-Rajpur Tihidi, Po:- Madhab Nagar , P.S:- Bhadrak (R),
Dist:- Bhadrak. ...........Complainant.
(Versus)
- Gutu Mohanty, Dealer of John Deer Tractor,
M/S. Gugul Auto Syndicate,
At- Motel Chhak, Po/P.S:- Bhadrak (T), Dist:- Bhadrak.
- M/s Sundaram Finance Ltd.,
At:-Salandi, By-pass Road,
Above Punjab National Bank, 3rd Floor,
Po/PS:- Bhadrak (T), Dist:- Bhadrak, Pin-756100.
- M/s Sundaram Finance Ltd.,
At/Po/PS:-Sahadevkhunta,Choudhury Niwas,
1st Floor, Dist:-Balasore- 756001.
- M/s Sundaram Finance Ltd.
Regd. Office:- 21, Patullos Road,
Chennai- 600002, Tamilnadu.
- M/s John Deer Tractor Company Ltd.,
Tower- 14, Cyber City, Magarpatta City,
Hadapasar, Pune- 411013, India. .……… Opp. Parties.
P R E S E N T S.
1. Sri Shiba Prasad Mohanty, President,
2. Smt. Madhusmita Swain, Member.
Counsels appeared for the parties.
Counsel for Complainant : Sri R.K. Nayak, Advocate& Associates,
Counsel for O.P. No.1 : Sri Subodha Chandra Tripathy, Advocate,
Counsel for O.P.2,3 & 4 : Sri P.K. Ray, Advocate & Associates.
Counsel for O.P. No. 5 : Sri Saroj Kumar Mohanty, Advocate.
J U D G M E N T.
SRI SHIBA PRASAD MOHANTY, PRESIDENT.
In the matter of an application filed by the complainant alleging deficiency of service against the Opposite Parties under Consumer Protection Act, 2019.
A fact of the case is that, the complainant is a poor, innocent & unemployed woman & in order to earn her livelihood intended to purchase a Tractor along with other accessories & therefore contacted a Dealer of John Deer Tractor (O.P.1) situated at Motel Chhak, Bhadrak. The O.P.1 insisted upon her to avail financial support from his company at a lower rate of interest & all these O.Ps assured all sorts of post sales services to the complainant for smooth operation of Tractor & repayment of loan installment. The O.P.2,3 & 4 advised the complainant to deposit a sum of Rs.1,70,000/- on 09.07.2018 as margin money with the O.P.1 & residual amount of the cost of the Tractor would be advanced as loan by O.P.2,3 & 4. The complainant signed blank cheques, blank printed documents & blank papers supplied by those O.Ps & other required blank forms for registration & insurance of the Tractor. After execution of all the relevant documents & signing blank cheques, the O.P.2,3 & 4 financed a sum of Rs.5,00,000/- for the said tractor. The complainant paid all the dues to the O.Ps regarding the Tractor, Trolley & documents. On receipt of the payment, the O.P.1 delivered one 5105 Model John Deer Tractor bearing Chassis No. 1PY5105 DAJA004945 & Engine No.PY 3029 D473770 without registration certificate, fitness certificate & insurance on dtd.09.07.2018 and when the complainant demanded for the said documents, the O.Ps assured firmly to send the above documents within a week. After 4 to 5 days of purchase of said tractor, the complainant noticed that the said tractor has already been used & damaged one & re-coloured and due to old & damaged tractor supplied by the O.Ps, the said tractor could not be used & stood idle. As such the complainant asked the O.Ps regarding the above fraud activities. The O.Ps assured to the complainant to return the defective tractor & provide a new tractor with all documents within 3 months. The complainant met the O.P.1 & 2 from time to time to solve her problem, but the O.Ps are taking various pleas in various time to avoid the complainant for which the complainant is remaining in both mental as well as financial agony which is an act of fraud & unfair trade practice. The O.Ps did not supply the vehicle documents such as registration certificate, fitness certificate & insurance etc. The complainant could not operate the said tractor as a result, the tractor could not ply on the road & failed to generate any income for a period of one year that amounts to unfair trade practice & deficiency of service towards the complainant. The complainant paid the installments till October 2019. The cause of action of this dispute arose on 30.10.2019 when the O.Ps finally refused to settle the claim of the complainant. As such the complainant has prayed to direct the O.Ps to provide a new tractor with all documents to the complainant. The complainant has filed the documents i.e. 1) Copy of Invoice dtd.09.07.2018, 2) Copy of Money Receipt dtd.09.07.2018 etc.
The O.P.No.1 set ex-parte.
The O.P.No.2,3 & 4 submit that, the complainant herself in the loan application as a businesswoman having various types of business income such as Transport income of Rs.3,33,000/-, other business income Rs.2,64,000/-& agricultural income of Rs.5,70,000/- per annum. This loan is for her additional income & not for earning livelihood by way of self-employment. The complainant has admittedly entered into a loan agreement vide No.NO43700072, DTD.11.07.2018 with the O.Ps on hypothecation of a John Deere (JD) 5105 Tractor with Trailer vehicle Model 2018. As on December, 2019 there is a default of 8 Nos. of installment amounting to Rs.81,839/- which is apart from future 38 Nos. of installments & late payment charges. The O.Ps have sent a legal notice dtd.05.08.2019 through it’s advocate to the complainant calling upon her to pay the entire contractual amounts of Rs.5,02,972.84 Paisa payable to the O.Ps. But the complainant failed to pay the loan dues in terms of the said notice. The transaction between the O.Ps & complainant are governed by terms & conditions of the Loan Agreement & parties have agreed to resolve the disputes through ‘Arbitration’ in the arbitration clause of the loan agreement. The O.Ps submit that the complainant is not paying the regular installments even though she is using the hypothecated vehicle for generating additional income over and above her business income. Under the circumstances, the complainant cannot pray for any reliefs after having breached the contractual terms & there is no ‘deficiency in service’ as alleged in the complaint petition. The O.Ps have filed the documents as 1) Copy of Loan Application-Cum-Proposal Form No. AC0437180081, dtd. 2) Loan Agreement No.N043700072, dtd.11.07.2018, 3) Advocate Notice dtd.05.08.2019 & Arbitrator Notice dtd.03.10.2019, and 4) Statement of Transactions, dtd.17.12.2019.
The O.P.No.5 submits that, the complainant had purchased the Tractor from the O.P.No.1 i.e. the Authorized Dealer M/s. Gugul Auto Syndicate. The Tractor sold to the complainant is of highest quality & the complainant has taken the delivery of the Tractor after pre-delivery inspection and entire satisfaction. The Tractor fully complies with warranties, assurances & specifications as per the manual & manufacturing warranty. The complainant has filed the case against the O.Ps alleging ‘deficiency in service’ due to selling/supplying an old & damaged tractor, further for not issuing the Registration Certificate (RC), Fitness Certificate (FC) & Insurance documents to the complainant in respect of the Tractor from the O.P.No.1 by paying Rs.1,70,000/- towards down payment & the rest amount has been paid by the O.P.2,3 & 4 towards the cost of the Tractor. The complainant has prayed to direct the O.Ps to replace the alleged defective Tractor with a new one & award compensation of Rs.2,00,000/- as compensation for mental agony & deficiency of service. The complainant has purchased the above tractor from the O.P.1. The complainant has no loco standi to maintain the dispute against the O.P.5. The complainant neither has paid any consideration nor has any privity of contact at the time of its sale to the complainant or the time of making of their complaint regarding the alleged grievance. The O.P.5 being the manufacturer of the alleged Tractor is selling the same to its authorized deal “Principal to Principal” basis for which the O.P.5 is no way liable or responsible for the acts or omission committed by other O.Ps. The O.P.5 has relied the documents of observations of Hon’ble Court i.e. 1) Xerox copy citation (SC) CA Appeal No.7330/1993 (Annex-A), 2) (2009-CPJ)-295-NC) Annex-B), 3) CA No.8701/1997 (SC) (Annex-C), 4) 2015(4) CPR 144 (NC) (Annex-D), 5) CA No.4319/1997 (SC) (Annex-E), 6) 2005-CTJ-798(CP) (SCDRC-Kerala)(Annex-F), 7) SLP©Nos.21178-21180/2009 (SC) (Annex-G) & 8)RP No.12/2008 (NC) (Annex-H).
Having gone through the case records and documents filed and carefully assessing the contention of these parties, this commission is of the opinion that the sum and substance of the entire accusation of the complainant is that she had been sold a pre-owned tractor by OP No.1 without Vehicular Papers. There is no allegation about any manufacturing defect of the tractor so there is no claim against OP No.5, the manufacturer. Similarly, she has availed financial assistance from OP No. 2,3 & 4 to purchase the Tractor which she has to repay. There is no claim against OP finance Company also. The complainant even after repeated notice did not appear to prove her pleadings. In such an event, this commission is finding it hard to believe that an old and damaged tractor was delivered to her and why she received it and that if it was detected by her within 4 to 5 days of her purchase why she waited for so long to file any complaint? Further, the complainant has taken prevaricative stance on the reason of her Tractor sitting idle; once she takes the stance of old and damaged tractor and in another for lack of vehicular papers. Under such circumstances, this commission finds it hard to rely on the averments of the complainant. The long absence of the complainant also adds weight against the complainant. This commission finds that there was at least 9 EMIs pending to pay by the date this present complaint is filed. In absence of any cogent evidence to substantiate the allegation of the complainant against OP No.1, this commission finds it hard to charge any of these OPs for Deficiency of Service or Unfair Practice.
O R D E R.
In the result, the complaint be & same is dismissed. No order of cost against any party.
This order is pronounced in the Open Court on this the 16th day of July 2024 under my hand and seal of the Commission.
