Date of hearing : 7th day of September, 2015
Date of judgment : Thursday, the 10th day of September, 2015
JUDGMENT
The instant appeal under section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) is at the instance of O.P. to impeach the judgment/final order dated 5th April, 2013 passed by the Ld. District Consumer Disputes Redressal Commission, Burdwan (in short, DCDRF) in consumer complaint No.05 of 2009.
The respondent herein being complainant initiated the complaint u/s 12 of the Act alleging that he has purchased one tractor financed by the opposite parties in accordance with the terms of agreement of financing dated 27.5.2005. As per the terms of the agreement he was under obligation of paying quarterly instalments @ Rs.20,168/- and he has paid Rs.1,21,044/- till 18.2.2008. However, for the amount of loan he has been provided a concession of Rs.40,332/- but the opposite parties in accordance with the scheme of Govt. of India did not provide him the concession and thereby committed act of deficiency of service and unfair trade practice. It has further been alleged by the complainant that the opposite parties engaged recovery agents for taking possession of the tractor and on 9.1.2009 lastly they had made such attempt. Hence the case with the prayers for compensation of Rs.80,000/- for deficiency of service and unfair trade practice, Rs.15,000/- for harassment and mental agony, pain and suffering and Rs.2,000/- as litigation cost, aggregating Rs.97,000/-.
The opposite parties by filing a written version disputed the claim stating that the complainant availed a loan of Rs.3,00,000/- from the opposite party Bank on 27.9.2005. After availing such facility the complainant purchased a tractor bearing No. WB 41B/8035 and he was under obligation to repay the loan amount beginning from 1.1.2006 to 1.1.2010 and the complainant till date paid instalments amounting to Rs.1,81,512/- out of which principal paid is Rs.1,13,411/- and interest paid is Rs.68,100/-. The complainant has made last payment on 24.1.2009 and as such an amount of Rs.2,34,284/- has become due and payable by the complainant. As a result, opposite party filed a suit being TS No.4683 of 2008 against complainant before VIIIth Bench of City Civil Court at Calcutta and the complainant did not appear therein. The opposite party categorically stated that there was no deficiency in service on the part of them and the complainant has failed to make payment of instalments and as such the complaint should be rejected on contest.
Relying upon materials on record and having heard the contentions of the parties, the Ld. DCDRF allowed the case on contest with an observation that being a small farmer, the complainant is not liable to any further sum out of the loan amount and further, opposite party to pay Rs.10,000/- for harassment, mental agony, pain and sufferings and Rs.15,000/- for unfair trade practice and Rs.1,000/- for litigation cost totalling a sum of Rs.26,000/- which prompted the opposite party to prefer this appeal.
The point arises for consideration in this appeal as to whether or not Ld. DCDRF was justified in passing the order impugned.
On close scrutiny of the materials on record it reveals that the respondent herein being complainant, took a loan to the extent of Rs.3,00,000/- for purchasing of one tractor being WB 41B/8035 and the said loan was accorded by virtue of loan agreement dated 27.9.2009. The loan was repayable by 60 quarterly instalments of Rs.20,168/- commencing from 1.12.2006 to 1.10.2010. The complainant has averred that till 18.2.2008 he paid 7 (seven) instalments amounting to Rs.1,21,044/-. Subsequently, the complainant has made payment on 24.1.2009. However, from the statement of accounts of the Bank, it emerges that the respondent has paid total amount of Rs.1,81,521/- and it has further been alleged by the appellants that due to non-payment of instalments, a sum of Rs.4,32,940/- has become due and outstanding from the respondent along with overdue charges as on 16.4.2013.
Be that as it may, it has further come to surface that appellant filed a suit being TS No.4683 of 2008 before the Ld. VIIIth Bench of City Civil Court at Calcutta for taking possession of the alleged vehicle. The certified copy of the order placed before the Commission indicates that by order No.2 dated 11.11.2008 one Mr. Santosh Chatterjee, Advocate was appointed as Receiver for the purpose of taking over possession of the vehicle in question.
However, the controversy arises as to whether in accordance with the provisions and guidelines of the Agricultural Debt Waiver and Debt Relief Scheme, 2008 the loan facility availed by the respondent falls under the category of investment loan as described in clause 3.3 or under clause 5.1 treating the same as waiver being small and marginal farmer. In this regard, the entry in the loan account of the appellant being ICICI A/c. No.LABDN00004582006 dated 30.6.2008 which bears the signatures of the parties, is a pointer. The agreement indicates that the loan was granted under Agriculture Debt Waiver and Debt Relief Scheme, 2008 treating the respondent as a small/marginal farmer. This being so and further when it reveals that the respondent has only 0.74 decimals of land and he must be considered a marginal farmer and such an amount of Rs.40,332/- must be waived. In other words, the contention of the respondent in this regard appears to be substantial and we accept the same.
However, we do not find any deficiency of service on the part of the appellant inasmuch as in accordance with the terms of agreement the respondent did not make payment of instalments in time. In fact, the respondent, in para 3 of his complaint, has admitted that he did not repay the amount of loan in accordance with the terms of the agreement. It means and indicates that there was contributory negligence on the part of the respondent to repay the amount of loan as per terms of the agreement. Accordingly, the question of deficiency in service on the part of the appellant cannot stand.
Similarly, the allegation of respondent that the appellants had engaged recovery agent for recovery of the vehicle does not appear to us substantial because the Ld. VIIIth Bench of City Civil Court has passed an order in TS 4683 of 2008 appointing one Advocate to take possession of the vehicle which is subjudice before a competent Civil Court.
In that view of the matter, though we are in agreement with the Ld. DCDRF that the complainant/respondent is entitled to relief in terms of clause No.5.1 being a small farmer since the loan was sanctioned in terms of notification No.RPCD No. PLFS.BC72/05.04.02/2007-08 dated 23.5.2008 but Ld. DCDRF was not justified in awarding compensation for harassment, mental agony, pain and suffering or unfair trade practice or litigation cost, as there was contributory negligence on the part of the respondent and further there was no deficiency in service and unfair trade practice on the part of the appellants.
For the reasons aforesaid, the instant appeal is allowed on contest but without any order as to costs with a modification of the impugned order to the extent that the opposite parties/appellants shall not be liable to pay Rs.10,000/- for harassment, mental agony, etc., Rs.15,000/- for unfair trade practice and Rs.1,000/- as litigation costs.
The judgment dated 5th April, 2013 passed by Ld. District Consumer Disputes Redressal Forum, Burdwan in complaint case No.05 of 2009 is modified to the extent indicated above.
