SRI BIJOY KUMAR DAS,PRESIDENT:-
Deficiency in service and Unfair Trade Practice adopted by the Ops on manufacturing defects and its non-replacement of the complainant’s vehicle are the allegations arrayed against the Opp. Parties.
2. Complaint, in brief reveals that, Complainant being an unemployed youth and to earning his livelihood purchased a tractor from Op No.4, S.J. AUTO Crafts, Kendrapara the authorized dealer and the said tractor is manufactured by TAFE MOTORS & TRACTORS Ltd., MADAYA PRADESH(OP No.3). Complainant to purchase the tractor availed a finance from the OpNo.1&2 finance Company by executing an agreement on dt. 29.09.2017. It is revealed that Complainant to purchase the tractor paid Rs. 1 Lakh to OP No.4-Dealer on dt.29.09.2017 vide money receipt No. 081 and the tractor was delivered to complainant on dt.27.12.2017. It is alleged that though the tractor was delivered on dt.27.12.2017, but Op No.2 & 4 did not deliver the Trailer/Goods carrier inspite of several requests and assurance. It is also alleged that on 20.6.2018 within six months of purchase when the tractor was tilling in the agriculture land the engine went disorder and brokedown due to manufacturing defects and the defects are not rectified though assured by the Ops. Complainant on non-repair of defects issued an advocate’s Notice on dtd. 04.12.2018 requesting them to repair the defects and delivery of the Trailer/Goods carrier. It is the further case of the complainant that he sustained a financial loss to the tune of Rs. 3 Lakhs and threatening of repossession of vehicle by OP No.1 &2 for its non-payment. Complainant preys this forum seeking a direction to Ops to deliver the Trailer/Goods Carrier, with a specific direction to Op No.1 & 2 not to seize the vehicle and also preys for compensation of Rs. 3,80,000/-(Three lakhs Eighty thousand only) which includes financial loss, compensation for mental agony and cost of litigation.
3. Upon receipt of notice General Manager and Branch Manager, Mahindra & Mahindra Financial Service Ltd. (OP No.1 & 2) appeared through their Ld. Counsel Mr. R.K.Sahoo and filed joint written version challenging the maintainability of the complaint, and in facts of the dispute with para-wise reply. On the grounds of maintainability, the contesting Ops(1&2) raised the question that complainant can’t be treated as a consumer as he was using the vehicle for ‘commercial’ purpose, which excluded the complainant form the definition of ‘consumer’ and the further ground of non-maintainability is the exclusive ‘Arbitration’ clause as per the agreement which ousted the Jurisdiction of this Forum and also cited different citations of Honbl’e Apex court. In the written version of Op-Finance Company, it is averred that complainant by executing an agreement on dtd. 29.9.2017 to purchase a Eicher Tractor 548-50HP which bears Regd. No. OD-29E-2472. It was agreed between the parties that the borrower will pay Rs. 16,655/- as EMI’s in 58 installments starting from dt. 05.11.2017 to 05.08.2022. It is also submitted that complainant-borrower has not paid a single Ruppe after dt. 05.10.2018 and as on dt. 24.05.2019 a total amount of Rs. 4,090.00/-is pending as arrear outstandings as EMI’s including other charges. It is categorically stated that as per the agreement complainant was availed finance only for Tractor and not for Trailer. It is also averred that the Op-finance company is no-way responsible for to the allegation of any manufacturing defect and complainant being defaulter has foisted this false complaint to avoid the payment of dues. This Ops have not committed any deficiency in service and are entitled to adopt legal procedure for recovery of loan-dues and in the circumstances, the complainant is devoid of any merit and is liable to be dismissed.
TAFE MOTORS & TRACTORS Ltd. Raison, M.P( OpNo.3) and S.J. Auto Crafts, Kendrapara(OP No.4) on receipt of Notice appeared through their Ld.Counsel Mr. R.P.Lenka and filed joint written version. In the para-wise replies denies the allegations and challenge the maintainability of the complaint as complainants’ purpose to avail the tractor for ‘commercial’ use. Hence, complainant is excluded from the definition of ‘consumer. Op No.3 & 4 submitting the facts averred that complainant paid Rs. 1 Lakh directly to this Ops against the value of the tractor of Rs. 7,24,500/- and the balance amount of Rs. 6,24,500/- was financed by Mahindra & Mahindra Finance Ltd. (Op No.1&2). The tractor was delivered to complainant on dt. 27.09.2017, but not on dt. 27.12.2017 as stated in the complaint. It is also averred that as per the terms and conditions of the warranty specific number of services are provided for repairs and replacement of spare parts within the warranty and complainant has availed the services as per the Job-card. It is categorically averred that the allegation of complainant regarding manufacturing defect on 20.6.2018, while the Tractor was tilling on the agricultural field are false and fabricated as the complainant has availed the service of the vehicle on dt. 20.06.2018 and subsequently on 04.10.2018 at the workshop of the Op No.4as revealed from the Job-cards where the complainant being satisfied on service provided by Op No.4 has put his signature on the Job-card. It is also the plea of the Ops that inspite of letters dt. 04.11.2018 and on dt. 01.12.2018 and on several telephonic contracts, the complainant did not produce the vehicle for servicing. On receipt of legal Notice of complainant dtd. 04.12.2018, Op No.4 on responding the Advocate’s Notice issued a letter on dt. 19.12.2018 requesting the complainant to bring the tractor to the show-room for its service, which was not responded, even the complainant refused to avail the service of the mechanic who was deputed by the authorized dealer to the house of the complainant for checkups of the Tractor. It is further case of the OpNo.3 &4that, complainant has not paid a single amount for purchase of Trailer and neither the OpNo.3 &4 is the manufacturer of the Trailer nor the dealer. In the circumstances OpNo.3 &4 preys this forum to dismiss the complaint as same is false and frivolous.
4. Heard the Ld. Counsels appeared for the Ops and case of the complainant on merit, perused the documents filed into the case as per the list, Annexures and gone through the written notes on argument filed by complainant and Op No.3&4.The admitted facts of the case are that complainant purchased a tractor form Op No.4-dealer which is manufactured by OpNo.3 Company being financed by Op No.1 & 2 Finance Company.
Ops challenge the maintainability of the complaint mainly on grounds that, complainant can’t be treated as a consumer U/S (2) (d)(ii) of C.P.Act-1986 as the complainant was running the vehicle for commercial purpose and cited decision of Honbl’e Apex Court on case of Laxmi Engineering Works vs PSG Industrial Institute reported in 1995-AIR-SC-1428. We gone through the citation and documents filed by the Ops. No convincing evidence is produced before this Forum except the loan application from which is relied by the Ops, no evidence is produced that the complainant was using the vehicle other than earning his livelihood. Op-finance Company also challenge the maintainability of the complaint before this Forum for deficiency in service in existence of clause of Arbitration in the agreement. In this point, we are of the opinion that U/S 3 of C.P.Act-1986, Complaint is maintainable before this Forum for deficiency in service inspite of clause of Arbitration on the agreement and to support our decision we rely on a decision of Honbl’e Apex Court in case of Fair Air Engineers vs N.K. Modi reported on 1993(1)CPR486(NC). Hence, the complaint is maintainable before this Forum.
Complainant alleges deficiency in service/Unfair Trade Practice upon Ops on two points. First, as the tractor in question on dt. 20.06.2018 while tilling in the agricultural field went disorder, engine broke down due to manufactory defects and inspite of several requests the defective-vehicle was not repaired by the Ops. The second point of allegation relates to non-supply of Trailer/Goods carrier by the Ops even after the assurance. Countering these allegation OpNo.3 & 4 takes the defence plea that, the allegations are false and baseless as on the dt. 20.06.2018, complainant has availed the service of tractor at the workshop of Op No.4 located at Kendrapara and subsequently on 4.10.2018 and after availing the service on said dates complainant being satisfied on the functioning of the vehicle put his signature in the Job-Card. The Job-cards of the dt. 20.06.2018 and 4.10.2018 are filed into the case. It is the further defence plea of Op No.3&4 that after receipt of advocate’s Notice dtd. 04.12.2018, Ops issued a letter through Regd. Post on 19.12.2018 requesting the complainant to bring the tractor to the workshop for its necessary check-up, but Complainant did not turn-up to comply his grievance, if any. The letter dtd. 19.12.2018 filed into the case. On the second point of allegation, the OpNo.1 & 2 countered the allegations that complainant has availed the finance only for the tractor not for the trailer. Simultaneously, OpNo.3 & 4 the manufacturing Company and authorized dealer’s case is that complainant has not paid a single pie for the Trailer and OpNo.3 & 4 are not manufacturer of trailer. In support of their stand, OpNo.3 & 4 filed Retail Invoice of the vehicle dtd. 27.09.2017.
Considering the allegations and defence pleas and on perusal of the relevant documents to ascertain the allegations of non-supply of Trailer. Op-finance Company filed Xerox copy of loan application from which is marked as Annexure-A, OP No.3 & 4 filed sale certificate(Form-21) and Invoice dt. 27.09.2017(certified Xerox copy). Complainant also filed self-attested photocopy of sale certificate and invoice of the vehicle. The loan application of the complainant-loanee reveals that complainant has applied for a purchase of a New EICHER Tractor to avail a finance of Rs. 6 Lakhs against the invoice price of the Tractor Rs. 7,24,5000/-. It is clear that the loan application does not speak a word about the supply of trailer as alleged by the complainant. The most interesting part of the specific dispute of supply of Tractor, complainant filed self attested Xerox copy of sale certificate and invoice, and the same sale certificate and invoice’s certified copy also filed by Op No.3 & 4. The genuineness of sale certificate, invoice produced by the complainant creates confusion in comparison to the sale certificate and invoice presented by Op No3 & 4. The sale and invoice produced by the complainant does not bear the signature of the buyer, whereas the sale certificate and invoice presented by the Op No.3 & 4 bears the signature of the complainant- purchaser. In addition, the dates mentioned on the sale certificate and cost of the vehicle as per invoice presented by the complainant and Op No.3& 4 are contradictory to each other. It also appears to us that complainant’s document filed for the purpose cannot be trustworthy. But both the sale certificate produced by the parties reveals that complainant has purchased only a EICHER Tractor as per the description without written assurance of providing any trailer.
On his second grievance of manufacturing defect, complainant alleges that on 20.6.2018 while the tractor was tilling in the agricultural land the Engine broke down and the vehicle was not in operational and inspite of several requestsOpNo.4-dealer did not repair/replace the vehicle for which complainant sent an Advocate’s Notice on 04.12.2018 complainant for non-repair of the vehicle and sustained financial loss. On the other hand Op No.3 & 4 on their defence submits that the said vehicle was brought into the workshop the Op No.4-dealer on different dates after sale of the vehicle and specifically on 20.06.2018 and on 04.10.2018. It is also the case of the Op No.3&4 that, if the Engine was broke down how the complainant brought the vehicle 40 Kms to the workshop of the complainant 20.6.2018? further as per the Job-card complainant has availed the service of Op No.4 on 20.6.2018 and on 4.10.2018. It is also the plea of the Op No.4-dealer that receipt of Advocate’s Notice, Complainant write a letter on 04.12.2018 to the complainant by Regd. Post with requesting him to brought the vehicle for its checkup and to rectify the defects, if any and also sent a mechanic to the house of the complainant refused to accept the service of the mechanic.
On this perticular allegation of manufacturing defect, Complainant does not file any Expert opinion except a self attested copy of Retail invoice dt. 17.03.2018 and dt. 04.10.2018. Op No.3&4 filed certified true copy of Job-cards in support of service availed by the complainant and duely signed by complainant on dt.26.01.2018,17.03.2018, 20.06.18&04.10.2018alongwith the copy of letter addressed to complainant on 04.10.2018 affixed with Regd. Postal receipt and written report of mechanic Bijay Kumar Dash dt. 26.12.2018. Considering the submissions, pleas and documents presented before us, we are of the opinion that complainant has availed the service of the case vehicle on 17.03.2018,20.6.18 & 04.10.18. If for the shake of argument, it is believed that no service is provided on dt. 20.06.2018, but according to the Retail invoice produced by complainant himself reflects that he availed the service of the case vehicle on 04.10.2018, which is not disclosed on the complaint petition for a ulterior motive Further, we believe that Op No.4 has made an effort on receipt of Advocate’s Notice by issuing letter to the complainant to brought the vehicle for its check-up at their workshop at Kendrapara. Complainant has not whispered a single sentence in his complaint in this regard, hence we are not convinced enough that the vehicle was having any manufacturing defects on the alleged date of occurance i.e, 20.06.2018 and complainant has not described the facts in a true spirit and the documents presented by him reflects that the complaint filed before this Forum with a hidden agenda best known to the complainant. The subsequent plea of complainant in connection to sustaining financial loss due to non-repair and non-placement of the vehicle by OP No.3&4 on or after 20.06.2018 does not arise as the complainant has availed the service of the vehicle from Op-dealer on dt. 04.10.2018, which contradicts his own statement.
On the above circumstances, the complainant has failed to produce any trustworthy evidence to substantiate his allegations rather the complaint is filed to get rid from the clutches of the Op-financer for repayment of dues. It is also clear that Ops have not committed any deficiency in service/ Unfair Trade Practice, accordingly we freed the Ops from the allegations made by the complainant.
Having observations reflected above, the complaint is dismissed without any cost.
Pronounced in the open Court, this 10th day of September-2019.
I, agree.
Sd/- Sd/-
MEMBER PRESIDENT
