Orissa

Jajapur

CC/74/2014

Dilip Kumar Jena - Complainant(s)

Versus

Manager Mahindra and Mahindra Finance Ltd. - Opp.Party(s)

S.Panda

26 Oct 2015

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Biraja Prasad Kar, President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.

                                              Dated the 26th day of October,2015.

                                                      C.C.Case No.74 of 2014

Dillip Kumar Jena S/O Birabhadra Jena

Vill. Narayanpur, P.O-Ardaulia, P.S.Mangalpur

Dist.-Jajpur.                                                                                     …… ……....Complainant .                                                                       .

                   (Versus)

1. Manager,Mahindra and Mahindra Finace Ltd, At.Mallik Complex,1^st floor, Panikoili

   P.S. Panikoili, Dist. Jajpur.

2. Owner and charge of Show room Kalinga Motors,At.Neulpur, authorized dealer

    Eicher Tractors,P.S. Dharmasala, Dist.Jajpur.

3. M.D,Eicher Tractor, A unit of Tafe Motors and  Tractor Ltd, plot No.1,sector-D,

    Industrial Area, Mandi deep. Dist. Raisen. M.P

4. Arati Motors, At.Neulpur,P.O. Haridaspur.Dist. Jajpur.

    Dist.-Jajpur.                                                                                            …………………..Opp.Parties. 

                                                          

For the Complainant:                              Sri S. Panda, U.K.Das,Advocates.

For the Opp.Party No.1 :                        Sri P.K.Ray,P.K.Mohapatra,Advocates.

For the Opp.Party No.2 and 3 :              Sri P.K.Daspattnaik,Advocate.

For the Opp.Party No.4  :                       None.                                                                                                                                   

                                                                                                          Date of order:   26. 10. 2015.

SHRI  PITABAS  MOHANTY,  MEMBER .

                        The complainant  has come with this complain petition alleging deficiency in service on the part of the  O.Ps. due to non providing of required  service during warranty period.

                        The facts of the dispute in short is that as per complaint petition the  petitioner had purchased a Tractor vide Regd. NO.0D-04-A-0361 by availing loan  from the O.P no.1  to maintain his livelihood under Hire Purchase Agreement .The said tractor was delivered by O.P no.2 .The total cost of the vehicle was Rs.5,10,000/- and the complainant repaid the installment dues regularly.

                        That the warranty period of the above vehicle was two years from the date of purchased and in case  any defect arose during the warranty period  of the said vehicle  it is the duty of the O.P no.1 and 2 to replace the trouble parts / damaged parts with free of  cost.

                        That on dt.05.01.2014 the engine of the tractor became defective and subsequently the engine of the vehicle seized and unable to ply on the road . Thereafter the complainant informed several times to the O.Ps. regarding  the defect of the vehicle but till date the O.Ps. did not take any steps to rectify the defect of the vehicle. Then due to non-ply of the tractor the complainant unable to pay the monthly installment as well as suffering financially loss and mental agony.

                        That lastly the complainant checked the vehicle on private service center and the private service center assessed the repairing cost to be  Rs.80,000/-.

                        Accordingly the complainant  has filed the  present dispute with the prayer to direct the O.Ps. to pay Rs.2,00,000/- to the complainant as compensation including repair cost of the vehicle.

                        After receipt of the notice the O.P no.1 appeared through their learned advocate and filed the written version taking the following defence:

1. That there is no allegation whatsoever against the answering O.P no.1 and the dispute relates to defect of vehicle to which the answering O.P no.1 is no way concerned at all. Therefore the claim of compensation against O.P.no.1 is out rightly  misconceived and the same are liable to be rejected against the answering O.P no.1.
2. The complainant had approached the answering O.P no.1 for seeking financial assistance for purchasing a tractor along with trailer according to his choice from the dealer . Subsequent to the request of the complainant for financial assistance, the answering O.P no.1 had provided two loans to the complainant and the complainant entered into two Loan-cum-Hypothecation –cum-Guarantee Agreements vide loan agreement no.2501626 dt.15^th March,2013 and loan agreement no. vide 2525205 dt.26^th March,2013 for a Tractor and a  Trailer respectively.
3. On 4^th February,2015, the complainant was supposed to pay 23 installments, whereas ,the complainant has paid only 14 installments, and was in default of Rs.1,06,200/- defaulting  9 installments besides late payment charges to the tune of Rs.22,136.00/- in addition to the future receivables  amount of Rs.2,83,200/-  towards (24 installments) is due and payable by the complainant.  As per the statement of account, it is crystal clear that the complaint can not be said to be a regular payer, since he  is irregular in making the payment of the loan, on the contrary he can be termed as a chronic defaulter.
4. Apart  from, the complainant  has availed another loan bearing No.2525205 on 26^th March,2013 to purchase a TRACTOR TRAILER’ bearing No.KEW111213 from Kalinga Motors. The answering O.P no.1 ,after being satisfied with the credentials of the complainant, had provided the second loan to the tune of Rs.50,000.00/- to the complainant, which will be repaid by the complainant amounting to  Rs.67,250.00/-  including interest in 35 periodical installments, the 1^st installments of Rs.1,9,70.00/- each starting from 26^th March,2013 and ending on 20^th January,2016.
5. Since the complainant has executed the above mentioned 2 loan agreements, the terms and conditions are binding upon him. As per clause 2(a),(c) and 3(d) of the agreement ,the borrower (complainant) is supposed to make the payment of the periodical installments in time and on failure of the borrower to do the same, the lender ( the answering O.p no.1) shall be entitled to the remedies as available under the said agreement.
6. There is no allegation indicating deficiency of service on part of the answering O.P.no.1 and is only a formal party and as such have nothing to counter or support allegation of the complainant. However, the answering O.P.no.1.

Accordingly the present complaint is liable to be dismissed lacking a proper cause of action.

The O.P no.2 and 3 appeared through their learned advocate and filed their written version taking the following pleas:

1. That the case is not maintainable in the eye of law and there is no cause of action to file this proceeding as against the O.Ps.
2. Complainant has purchased the Eicher Tractor from M/S Kalinga Motors on 28.02.2013 Model No.333 and utilized it for his own convenience. In the mean while complainant has availed two numbers of free services from M/S Kalinga Motors at Chandikhole . After inception of M/S Arati Motors as an authorized Agent of Eicher Company has provided 3^rd and 4^th services to the complainant. During the period of 4 nos of services the complainant has never pointed out the alleged defect in the said tractor enginee. The manufacturing company provides certain norms and guidelines or so to say user’s manual basing upon which owner of the vehicle/ tractor may utilized it for his own benefit, if the utility of the tractor go beyond the prescribed manual then the manufacturing company may not be held responsible as per terms and conditions of warranty. Besides the facts condition of warranty does not cover to all the equipments / components of the tractor for which there are certain norms and guide lines. There are some spare and equipments used in the tractor which has been manufactured by some other company and utilized by the Eicher Company for manufacturing of its tractor. If those item are damaged , or found to be defective, during time of its use or operation then the customer is duty bound to inform immediately to the Eicher Tractor company, for its, immediately ,repairing / renovation or for its restoration it must be in due time, inspite of doing so the complainant opened the engine and fuel pump of the tractor in a local garage having no technical knowledge of the local mechanic he removed the F.I pump from the engine and got it repaired. Unfortunately the local mechanic could not have been succeeded in his attempt and got damaged both the engine of the Tractor as well as the F.I pump.
3. After filing of the case the O.Ps. through its mechanic has gone to the house of complainant and assessed the tractor and its engine F.I pump and found the above mentioned facts and made an attempt for removal of defect in the said vehicle but the complainant did not agree upon the proposal of the O.P hence this O.P is  no  way deficit in providing services to this complainant.
4. As per terms and condition of warranty, the minimum period of warranty for the F.I pump is of one year from the date of its manufacturer or delivery of the vehicle.
5. In the aforesaid circumstances the complainant has already surpass the period of warranty. Hence could not be claimed the same from the O.Ps. Besides the complainant has violated the general terms and condition of warranty coverage of the article. Hence, this O.P is no way entitled to provide any services to the complainant for repair or renovation of the said equipment of engine morefully during 4 nos. consecutive free services the complainant has never pointed out regarding damage or defect of pumps to the authorized service station. Now after fulfillment of all such free services the complainant is playing a hide and sick game with the O.P company to defame the company in public.
6. Besides all such facts under the good will and gesture the company is always ready and willing to assist its customer from its satisfaction .

For the reason stated above the dispute filed by the complainant is liable to be dismissed against the O.Ps.

Thereafter the O.P no.2 and 3 filed a memo on dt.04.10.15 which indicates that the O.P no.2 and 3 are ready to provide the essential service of the above vehicle of the complainant if the complainant produced the above vehicle(Tractor) to the nearest authorized service center of the O.Ps. and the O.P under takes to repair the vehicle and make it road worthy condition . The complainant was also not objected the proposal of the O.Ps no.2 and 3.

Notice was issued against the O.P.no.4 . But the O.P.no.4 did not choose to contest the case by filing written version. Hence, he is set exparte on 16.09.15.

On the date of hearing we heard arguments from the learned advocate for both the sides and after perusal of the record we do not found any documentary evidence which established the allegations of deficiency in service on the part of the O.Ps. Accordingly we disposed of the dispute as order below in view of the memo filed by the O.P.no.2 and 3.

                                                                                    O R D E R

                                    In the net result the dispute is dismissed of  against O.P.no.1 . The complainant is directed to produce the alleged vehicle before the authorized service center of O.P no.2 and 3 with proper acknowledgement  within 15 days after receipt of the order. The O.P no.2 and 3 also directed  to rectify the defect of the above vehicle (tractor) within one month after receipt of the tractor. No cost.                               

   This order is pronounced in the open Forum on this the 26th day of October,2015. under my hand and seal of the Forum.                                                                                             

 

(Shri Biraja Prasad Kar)                                                                              (Shri Pitabas Mohanty)                                                          

          President.                                                                                                      Member.                                                                      

                                                                                                      Typed to my dictation & corrected by me

 

(Miss Smita Ray)

 Lady  Member.                                                                                          (Shri Pitabas Mohanty)

                                                                                                                               Member.                                                                                                                                    

                                            

                                                                                                

          .