BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30th day of November, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.51/2009

Between

Complainant : Shijo Paul S/o Paulose,

Kochupurackal Thazhathu House,

Kattappana P.O,

Kattappana,

Idukki District.

(By Adv: C.P.Reji)

And

Opposite Parties : 1. The Managing Director,

Punjab Tractors Limited, Ist Floor, 9, South Bog Road,

T.Nagar, Chennai.

2. M/s.Gurudevan Enterprises,

Reg.Office, 13/718,

Kacherimedu, Chittoor,

Palakkadu – 678 181.

(By Adv: P.R.Muraleedharan)

3. K.V. Vinod, S/o Viswambaran,

Karukasseril House,

Kadamakkuzhy P.O,

Vallakkadavu,

Kattappana Village,

Idukki District.

4. The Manager,

Canara Bank,

Thodupuzha Branch,

Thodupuzha P.O.

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Complainant and his father jointly availed an agricultural loan of Rs.13,25,000/- on 14.02.2006 from the 4^th opposite party bank for the purchase of a Swaraj 855 model tractor and its accessories. As per the advice of the 3^rd opposite party, who is the authorised agent of the Ist and 2nd opposite parties, complainant advanced Rs.1,25,000/- to the 2^nd opposite party who is the authorised Sales Agency of the Ist opposite party and booked the tractor and its attachments on 9.02.2006. The balance Rs.13,25,000/- was paid by the 4^th opposite party bank directly to the 2^nd opposite party on 14.02.2006. The same was delivered on 17.02.2006 but it was repossessed due to mechanical defect, soon. After a long time in April 2006, the 2^nd opposite party intimated through 3^rd opposite party that they are ready to deliver the tractor. But the complainant was not ready to receive the machine because of the heavy loss caused due to the laches from the part of opposite parties 1 to 3. Then the 2^nd opposite party disbursed Rs.15,000/-, and a cheque of Rs.40,000/- to the complainant as compensation for the defect of the machine. So the tractor was again delivered by the 2^nd opposite party at Kattappana on 28.04.2006. On the next day onwards the machine again became defective. Eventhough the same was repaired several times but it was not able to cure the defects totally. On understanding the same, the 2^nd opposite party got returned the Front End Loader, Cabin Assembly, Back Hoe of the machine. The cost for the accessories was Rs.9,40,000/-. The 2^nd opposite party delivered a trailor to the complainant which costs Rs.80,000/- at that time. So the complainant is entitled to get Rs.8,65,000/- as cost of the accessories. Complainant several times requested for getting the same. Because of the defect in the machine, the complainant was not able to do the agricultural work. Complainant has got a heavy loss due to this. The 2^nd opposite party issued a cheque for Rs.4,75,000/- but it was dishonourd when presented before the bank. The 2^nd opposite party disbursed only Rs.5,20,000/- by several instalments. The balance Rs.3,45,000/- and its interest is entitled by the complainant. Legal notice was issued to Ist and 2^nd opposite paties and also to the 3^rd opposite party. But no reply was received for the same. Complainant approached the 4^th opposite party for surrendering the vehicle but the 4^th opposite party was never ready to close the loan account. After several repeated requests, the 2^nd opposite party, through the 3^rd opposite party who is the sales executive of them gave a letter to the complainant on 12.04.2007 stating that the entire amount would be returned within 31.08.2007. But nothing was done. So the complaint is filed for getting the balance Rs.3,45,000/- and for compensation Rs,4,05,000/- with 18% interest from the opposite parties.

2. As per the written version of the 2^nd opposite party, they have admitted that the complainant booked a tractor after paying Rs.1,25,000/- to the 2^nd opposite party. The 3^rd opposite party was the sales executive of the 2^nd opposite party, only for a period from March 2004 to December 2006. After that the 2^nd opposite party has no dealings with the 3^rd opposite party. The tractor was delivered to the complainant on 17.02.2006. After registration of the vehicle at Idukki, it was taken to Coimbatore for fitting the front end loader, back hoe and cabin assembly. On the way to Coimbatore the vehicle hit down a pedestrian at Kuruppampady near Perumbavoor. Kuruppampady police registered a case against the driver of the complainant for the above said act. Release of the veicle from the police station was delayed due to non co-operation of the complainant. At last the vehicle got released, was taken to Coimbatore, fitted the front end loader, back hoe and cabin assembly as desired by the complainant and redelivered on 28.04.2006. The vehicle was delivered at Kattppana, then it was taken to Idukki for registration, thereafter the vehicle was again taken to Coimbatore for extra fittings and finally redelivered at Kattappana, by the time it run 93 hours. The vehicle has no manufacturing defects or any other material complaints as alleged by the complainant. The vehicle was in good running condition and of excelent performance.

Complainant rented out the vehile to several persons and the same was operated by inexperienced drivers. The statement that the 2^nd opposite party took back the attachments of the vehicle for Rs.9,45,000/- etc. are thoroughly false. 2^nd opposite party never took back any of the attachments as alleged in the complaint. On the other hand, as desired by the complainant, the 2^nd opposite party arranged a third party to purchase the attachments at a second hand rate, it was with the consent of the 4^th opposite party. Accordingly the attachments were sold for Rs.5,20,000/-. 2^nd opposite party was only a mediator in the said deal. 2^nd opposite party issued a cheque for Rs.4,75,000/- , ie, the amount received as the Ist instalment. By the time the 4th opposite party intimated the 2^nd opposite party that the sale consideration should be deposited with the bank and not to entrust the amount with the complainant. There upon the 2^nd opposite party caused to dishonour the cheque and paid the entire sale proceeds to the 4^th opposite party. The statement that the vehicle was not fit for agricultural operations etc. are also false and baseless. The allegation that Rs.5,20,000/- was paid in instalments etc, are thoroughly false. The further claim that an amount of Rs.3,45,000/- is due from the 2^nd opposite party etc. are absolutely false. No amount is payable to the complainant as stated in the complaint. The statement that the 3^rd opposite party intimated the complainant that the entire amount will be paid within 31.08.2007 etc. are false. Alleged document dated 12.04.2007 is a forged one and the same is not at all binding for the 2^nd opposite party. 2^nd opposite party is a registered partnership firm. 3^rd opposite party was not the sales executive of the 2^nd opposite party on the period 12.04.2007. Moreover he is not compentent to represent the 2^nd opposite party. He was not authorised to make any such representations to anybody including the complainant. 2^nd opposite party was totally unaware of the document dated 12.04.2007 till receipt of the copy of the complaint from the Hon'ble Forum. 2^nd opposite party firmly believe that the alleged document dated 12.04.2007 is the result of fraud and collusion between the complainant and the 3^rd opposite party. The alleged document dated 12.04.2007 is not issued under the instructions or authority or knowledge of the 2^nd opposite party. Complainant has no legitimate claim against the 2^nd opposite party. 2^nd opposite party is not liable to pay any amount as claimed in the complaint. There is no deficiency of service or unfair trade practice as alleged in the complaint. The complainant is not entitld to get any of the reliefs sought in the complaint.

3. As per the written version of the 3^rd opposite party, the complainant has no consumer relationship with the 3^rd opposite party and the above complaint is barred by limitation. The transaction with the complainant and the opposite parties are purely commercial transaction. The 3^rd opposite party was the sales representative of the 2^nd opposite party from March 2004 till December 2006. The complainant booked a tractor after paying Rs.1,25,000/- to the 2^nd opposite party. The tractor was delivered to the complainant on 17.02.2006. The vehicle was taken to Coimbatore and fitted the front end loader, back hoe and cabin assembly as desired by the complainant and re-delivered on 28.04.2006. There was no manufacturing defect or any other defect as alleged by the complainant. As per the request of the complainant the 2^nd opposite party arranged a 3^rd party to purchase the attachments at a second hand rate and it was with the consent of the 4^th opposite party. Accordingly the attachments were sold for Rs.5,20,000/-. The 3^rd opposite party never issued any document on 12.04.2007 or any other date to the complainant. The alleged document is a forged one created for the purpose of this complaint. On the way to Coimbatore the vehicle hit down a pedestrian at Kuruppampady. Kuruppampady Police has registered a case against the driver of the complainant for the above said act. Inspite of repeated demands the complainant has not co-operated with the release of vehicle. At last the 3^rd opposite party contacted the complainant and he entrusted the original documents of the vehicle and a consent letter for the release of the vehicle with the 3^rd opposite party. While issuing these documents and letter, the complainant collected two signed blank papers from the 3^rd opposite party as security, for the assurance of the proper delivery of the vehicle and documents in return. After fitting the front end loader, back hoe and cabin assembly the vehicle was re-delivered on 28.04.2006 along with the original documents of the vehicle. While entrusting the documents, the 3^rd opposite party demanded back the signed papers which were collected by the complainant. There upon the complainant replied that the signed blank papers entrusted with were irrecoverably lost and on 28.04.2006 the complainant issued an acknowledgement in his hand writing on his letter head stating that the papers were lost. He further assured that he will not make use of these blank papers. The above said acknowledgement is produced herewith. The document dated 12.04.2007 is forged by the complainant by using one of those two blank papers. The above said document is not executed by the 3^rd opposite party. The document dated 12.04.2007 is not binding on the 3^rd opposite party. So the complaint is not maintainable and hence dismissed.

4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to ?

5. The 1^st and 4^th opposite parties are absent and were called as ex-parte.The evidence consists of the oral testimony of PW1 and Exts.P1 to P10 marked on the side of the complainant and the oral testimony of DW1 and Exts.R1 to R3 marked on the side of the opposite parties.

6. The POINT:- The only dispute is (a) whether the Swaraj 855 model tractor purchased by the complainant is having any manufacturing defect. (b) Whether the complainant purchased the same for his livelihood or for commercial purpose. (c) Whether the petition is barred by limitation ?

The complainant purchased the tractor by paying an amount of Rs.14,50,000/- to the 2nd opposite party by way of arranging agricultural loan from the 4^th opposite party. Complainant was examined as PW1. The invoice bill dated 14.02.2006 for Rs.14,50,479/- is marked as Ext.P1. PW1 deposed that he is an agriculturist and having more than 4 acres of land, his father is having another 4 acres of land. PW1 is having a business named Kochupurackel Marketing, which is marketing agricultural products. The tractor is purchased for his agricultural purpose. The tractor and Trailor are using by the PW1, now also. On 17.02.2006, the vehicle purchased was repossessed by the 2^nd opposite party because of mechanical fault. It is also for fitting the accessories because it was delivered on 14.02.2006 without the complete accessories. In April 2006, the 2^nd opposite party informed through 3^rd opposite party that the vehicle could be delivered to the complainant. But the complainant was not ready to receive the same. So the opposite party offered Rs.55,000/- as compensation for the deficiency in service and the tractor was delivered at Kattappana on 28.02.2006. Again the same became mechanical trouble repeated and so the attachments such as front end loader, cabin assembly and back hoe were returned to the 2^nd opposite party. It cost Rs.9,45,000/- and a Trailor cost Rs.80,000/- was fitted in the tractor. So the 2nd opposite party owes Rs.8,55,000/- to the complainant. After repeated demands the 2^nd opposite party paid Rs.5,20,000/- to the complainant's bank. Now also the complainant is liable to get Rs.3,45,000/- and also liable for compensation.

As per the cross examination of the learned counsel for the opposite party, the complainant admitted that the tractor was seized by the Vandanmedu Police on 28.07.2007 for illegal transfer of sand. The vehicle was released by giving bond before the Honourable High Court of Kerala. A money suit was filed before the Sub Court, Kattappana as OS No.103/08. In this case it is contended that the vehicle is having a saving of Rs.25,000/- per month. The vehicle was a taxi permit for a short period. He also admitted that once the vehicle was hired to one Mr.Mayakunnel Sumesh. The maintanance cost and expenses were also spent by the Sumesh. Ext.P7 and P10 are the bills issued from the 2^nd opposite party for the repair of the vehicle. 2^nd opposite party was examined as DW1. As per DW1, the vehicle met with an accident at Kuruppampady on the way to Coimbatore for fitting the accessories of the vehicle and the Kuruppampady Police registered a case as crime No.70/2006. Ext.R2 is the copy of the FIR. Due to the laches from the part of the complainant the vehicle was released after a long delay. Again the vehicle was fitted with the accessories and delivered to the complainant on 28.02.2006. The vehicle was never repossessed by the 2^nd opposite party as per the request of the complainant. The attachments of the vehicles were sold out to a 3^rd party through the mediation of the 2^nd opposite party. From that amount, Rs.5,20,000/- was paid at the opposite party bank and a trailor was fitted in the tractor which cost Rs.80,000/-. As per the request of the 4th opposite party bank the amount was paid to the bank. Rs.55,000/- was given to the complainant as incentive and not as compensation. Ext.P7 is the bill for the change of hydrolic oil. There is no mechanical defects for the vehicle. The defects were cleared by the opposite party in the warranty period itself with free of cost, which were caused due to the use of the vehicle, not due to the manufacturing defect.

As per the complainant who is an agriculturist having more than 4 acres of land and he is also doing some business. The complainant himself admitted that the vehicle was given for rent and at that time the vehicle was seized by the Vandanmedu Police due to illegal transfer of sand. The complainant was receiving monthly rent for the vehicle.

As per the 3^rd opposite party he was working with the 2^nd opposite party as an executive only for a limited period. That is from March 2004 to December 2006. When the vehicle was met with an accident at Kuruppampady the complainant authorized the 3^rd opposite party to receive the vehicle from the Police station and entrusted all the documents of the vehicle to the 3^rd opposite party. The 3^rd opposite party signed some blank paper to the complainant for the security of the same. When the documents of the vehicle were returned, the complainant told that the blank papers issued by the 3^rd opposite party were lost. By using that blank paper the complainant created Ext.P5 document. The complainant issued a lawyer notice to the 3^rd opposite party by demanding an amount of Rs.4,25,000/- on 29^th September 2006. The 3^rd opposite party replied for that lawyer notice in a piece of paper stating that they have already paid some amount to the complainant for the tractor and the remaining amount will be paid within 31.08.2007 which is Ext.P5. As per the 3^rd opposite party the complainant forged those blank signed papers entrusted by him and made Ext.P5 in order to overcome the bar of limitation. In this case Ext.P5 is written as by the 3^rd opposite party for the reply of lawyer notice issued to the OP1 and OP2. Ext.R3 is a letter issued in the letter head of the complainant stating that the signed papers received from the 3^rd opposite party were lost from the complainant and if any problems arising from that, the complainant will be responsble for the same which is stated on 28.02.2006. The complainant admitted the signature and handwritting in Ext.R3. So it makes us a conclusion that the version of the 3^rd opposite party is more believable than that of the complainant. The notice was issued to the 1^st and 2^nd opposite parties and the Ext.P5 reply letter is only a piece of paper printed in English, but in the bottom of the paper 3^rd opposite party's signature is affixed. There is no reply notice issued by the 1^st and 2^nd opposite parties. So the only document dated 12.04.2007 which is Ext.P5 is produced before this Forum for the cause of action of this case.

So we think that the vehicle purchased by the complainant is absolutely for commercial prupose not for his livelihood. The Ext.P5 is the only document produced by the complainant for overcoming the limitation, and that document is not reliable because Ext.P5 is not proved beyond doubt.

Hence the petition dismissed. No cost is ordered against the complainant.

Pronounced in the Open Forum on this the 30^th day of November, 2009

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

SMT.SHEELA JACOB(MEMBER)

Sd/-

SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - Shijo Paul

On the side of Opposite Parties :

DW1 - A.Murugadas

Exhibits:

On the side of Complainant:

Ext.P1 - True copy of Invoice dated 14.02.2006 for Rs.14,50,479/-

issued by the 2^nd opposite party

Ext.P2(a) - True copy of Receipt dated 14.02.2006 for Rs.4,25,000/-

issued by the 2^nd opposite party

Ext.P2(b) - True copy of Receipt dated 14.02.2006for Rs.9,00,000/-

issued by the 2^nd opposite party

Ext.P3 - True copy of DD dated 9.06.2006 for Rs.4,75,000/- of Canara Bank,

Palakkadu branch

Ext.P4 - True copy of Lawyer Notice dated 29.09.2006 issued by the

advocate of the complainant

Ext.P5 - Letter dated 12.04.2007 issued by the 2^nd opposite party to the complainant

Ext.P6 - 2^nd opposite party's letter dated 6.05.2006 addressed to the

3^rd opposite party

Ext.P7 - Cash Bill dated 13.05.2006 for Rs.800/- issued by India Techs

Limited, Kattappana

Ext.P8 - 2^nd opposite party's letter dated 18.05.2006 addressed to the complainant

Ext.P9 - Estimate dated 19.05.2006 issued by the 2^nd opposite party

Ext.P10 - 2^nd opposite party's letter dated 27.05.2006 addressed to the complainant

On the side of Opposite Parties:

Ext.R1 - Copy of Plaint filed before the Hon'ble Sub Court, Kattappana as O.S.103/2008

Ext.R2(a) - Photocopy of FIR

Ext.R2(b) - Photocopy of Authorisation letter dated 24.02.2006 issued by

the complainant to the S.I of Police, Perumbavoor

Ext.R3 - Complainant's letter dated 28.04.2006