Orissa

Cuttak

CC/199/2013

Silita Barik - Complainant(s)

Versus

Managing Director,Vikrant Engineers - Opp.Party(s)

S S Mohapatra

11 Nov 2016

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

                                                                                C.C No.199/2013

Silita Barik,

W/O:Dilip Kumar Barik,

Res. of Krushnachandrapur,PO:Brahamanigaon,

Dist:Cuttack.                                                                               … Complainant.

Vrs.

1.         Managing Director,Vikrant Engineer’s,

A/38,Industrial Estate,

At/PO/PS:Madhupatna,Dist:Cuttack.

 

2.           Mahindra and Mahindra Ltd.,Tractor Division,

Akruli Road,Mandivil East,

Mumbai.

 

3.           Proprietor,Sidhi Durga Engineering,

B-37,Industrial Estate Cuttack.

 

4.     Authorised Signatory,   L & T Finance Limited

At: L & T House,N.M. Marg,

Ballard Estate,Mumbai.                                                            … Opp. Parties.

 

Present:  Sri Dhruba Charan Barik,President.

   Sri Bichitrananda Tripathy, Member.

   Smt. Sarmistha Nath, Member (W).

 

Date of filing:   13.09.2013

Date of Order: 11.11.2016

 

For the complainant   :      Sri S.S.Mohapatra,Adv. & Associates.

For the O.P.No.1.        :      Sri D.K.Sahu,Advocate.

For the O.P.No.3         :       Sri H.B.Das,Advocate.

For the O.P No.4         :        Sri N.K.Dash,Advocate & Associates.

 

Mr. Bichitra Nanda Tripathy, Member.

                The complaint is against the O .Ps for deficiency in service.

In nutshell the complaint is as follows:

1. The complainant purchased a tractor of Mahindra & Mahindra Make-275 D1- Model from O.P No.1.  He also purchased a trailer from O.P No.3 through O.P No.1.  He paid Rs.10,000/- on 29.03.2011 and Rs.2,80,000/- on 08.05.2012.  Thus in toto the complainant paid Rs.2,90,000/- of which O.P No.1 had received a sum of Rs.1,85,000/- and O.P No.3 had received a sum of Rs.1,05,000/- towards cost of trailer. The cost of tractor was Rs.5,38,000/- and  since O.P No.1 received a sum of Rs.1,85,000/- from the complainant.  O.P No.1 also arranged a loan for the complainant from L & T Finance amounting to Rs.2,75,000/- towards cost of the said tractor on 29.06.2012.  Such receipts are marked as Annexure-1.
2. The O.P No.1 handed over the tractor and trailer to the complainant lately without sale certificate for which the tractor could not ply and stood idle for want of Registration certificate.  Even if the O.P No.1 had assured the complainant that O.P No.1 will arrange for Registration, Insurance and Govt. subsidy worth Rs.2,50,000/- but he did not .
3. The complainant requested O.P No.1 on 07.09.2012 to supply the Registration certificate and replacement of 2 tyres and battery of said tractor which were damaged.  Copy of such notice dt.7.9.12 is marked as Annexure-2.
4. Lately O.P. No.1 supplied the Registration certificate of the said tractor to the complainant which was registered on 10.01.2013 vide Regd. No.OD-05A-8152.  As per the said Registration certificate the tractor was shown as purchased on 09.01.2013 but the claim of the complainant for replacement of two tyres and battery were not fulfilled.  Copies of registration certificate, fitness certificate, permit etc. are shown as Annexure-3.
5. Since the vehicle was registered late, the complainant could not ply the vehicle and therefore failed to repay the E.M.Is to the financier i.e. O.P.4 for which O.P No.4 forcibly took away the vehicle of the complainant for which the complainant suffered huge loss.
6. Finding no other way, the complainant took the matter under this Hon’ble Forum.  He has prayed to direct the O.P No.4 to handover the seized tractor to the complainant, to direct O.P.1 and O.P.3 to pay the balance E.M.Is of the aforesaid tractor and trailer to O.P No.4 with remaining O.D claims till the tractor and trailer are handed over to the complainant ,to direct the O.Ps to pay a further sum of Rs.1,00,000/- as compensation towards loss of income, to direct O.P No.2 & 3 to pay a sum of Rs.2,50,000/- towards government subsidy which the complainant could have received from government, to direct the O.Ps to replace the battery and tyres of the said tractor while handing over the same to the complainant , to direct the O.Ps to pay Rs.10,000/- to the complainant towards mental agony and Rs.50,000/- towards cost of litigation.

1. The O.P No.1 vide their written version dt.14.3.2014 has intimated as follows:-

1. The copy of money receipt dt.8.5.11 and 29.3.11 as produced by the complainant are forged and manipulated.
2. The tractor was purchased by the complainant on 20.12.2011 for Rs.5,38,000/-.  The complainant had paid Rs.1,36,000/- on 01.04.2011 and again paid Rs.10,000/- on 7.1.2012.    Thus the complainant had paid Rs.1,46,000/- in total.  Soon after the 1st payment, the tractor was handed over to the complainant.  Thereafter finance was arranged from L & T Finance Company(O.P.4).  A sum of Rs.2,30,865.00 was paid by O.P No.4 on 24.11.2011 and a further sum of Rs.25,651/- was also paid on 24.01.2013 by O.P No.4 to O.P No.1 for the complainant.  As such the O.P No.1 had received a sum of Rs.2,56,516/- for the complainant through the financier i.e. O.P No.4.
3. The total cost of tractor was Rs.5,38,000/- of which the complainant has paid Rs.4,02,516.00 and a sum of Rs.1,35,484.00 is still outstanding against the complainant.  The O.P No.1 has issued sale certificate in good faith on 9.1.2013 and also as a kind gesture to the complainant.
4. The O.P No.1 has not given any assurance to the complainant regarding arrangement of finance, Registration and Insurance of the vehicle and availability of Govt. subsidy worth Rs.2,50,000/- as alleged by the complainant.
5. The O.P No.1 is also not liable for longevity of battery and tyres of the tractor.
6. That the vehicle was plying regularly till the O.P No.4 i.e. financier seized the vehicle for non-payment of E.M.Is.

2. A) The O.P No.3 vide letter dt.18.12.13 has intimated that the complainant has lodged complaint regarding the tractor but not regarding the trailer.  The trailer was handed over to the complainant in tip top condition and the complainant has never approached O.P No.3 for any problem relating to the trailer.

2. The O.P No.3 vide their letter dt.3.9.2014 has further intimated that the receipt for Rs.1,05,000/- dt.8.5.2012 is a forged one and false.  But the complainant has purchased one trailer from O.P No.3 on 9.1.2013.

3. A) The O.P No.4 vide their written version dt.1.8.2014 has intimated that the complainant was financed with Rs.2,75,000/- vide contact No.OKG 002008 R1100444075 dt.23.12.11 and had agreed to repay the loan in 12 nos. of equal quarterly installments starting from the period from 15.01.2012 to 15.12.2014 @ Rs.29,655/- per quarter.

2. The post dated cheques deposited with O.P.4 towards repayment of the above loan as E.M.Is were regularly dishonored.  Since there was default in repayment of E.M.Is as per terms of the contract the O.P No.4 had repossessed the vehicle.
3. As per  Annexure-B, page-19 & 20 of the loan agreement it is learnt that the cost of tractor was shown as Rs.5,38,000/- of which Rs.2,63,000/- was shown as  margin money and Rs.2,75,000/- is  shown as the loan amount as required by the complainant.

4. O.P.No.2 has not submitted any written brief and thus we conclude that O.P.2 is not directly linked with the matter, hence has said nothing on the matter.
5. Vide rejoinder/written notes dt.7.7.2014 the complainant has further intimated the following facts:-

1. That after seizure of the vehicle by the financier (O.P.4) the complainant lodged a F.I.R with Purighat Police station vide P.S. Case No.45/.2013 basing on which the said tractor and trailer were seized from the custody of O.P No.4 by the police.  Thereafter, O.P.No.4 filed a petition before the learned court of the SDJM(S),Cuttack for releasing the said vehicle in favour of O.P No.4 &  vide order dt.23.4.2013 in Criminal misc. case No.63/2013 the learned SDJM(S),Cuttack has directed for release of the aforesaid tractor in favour of O.P No.4.  Challenging the above order of the learned SDJM(S),Cuttack, the complainant has filed a criminal Revision before the learned Court of the Sessions Judge,Cuttack vide Criminal Revision No.50/2013 and vide order dt.10.12.2013, the learned Sessions Judge directed to release the aforesaid vehicle in favour of the complainant on furnishing an indemnity bond of Rs.2,00,000/- with one solvent surety for the like amount with condition that the complainant will not change the ownership of the tractor and shall not change the colour and other vital parts of the tractor and shall produce the tractor in court as and when required.  Accordingly the vehicle was released in favour of the complainant on 13.12.2013.  Therefore, the complainant does not want to press the first prayer i.e. to direct the O.P No.4 regarding release of the said tractor in favour of the complainant for the time being.
2.  Since the O.P.1 has denied the facts that he has received Rs.2,90,000/- from the complainant, the complainant lodged FIR against O.Ps 1 & 3 but since such FIR was not accepted the complainant lodged complaint case vide ICC Case No.542/2014 for a direction to the police for investigation of the said matter.  Accordingly the learned SDJM(S) vide order dt.16.5.2014  disposed off  the said ICC case No.542/2014 and send complaint petition of the aforesaid complaint case U/S-156(3) Cr. P.C to Madhupatna Police station to treat the complaint petition as FIR and for investigation of the same.  Accordingly IIC,Madhupatna police station registered the FIR on 17.5.2014 against O.P.1 & 3, implicated them U/S-417/408/409/406/420/465/468/471/472/478/474/34 – IPC vide Madhupatna Police Station Case No.59 dt.17..5.2014. Corresponding to G.R Case No.866 of 2014 pending with learned SDJM(S), Cuttack.(copy of such FIR dt.17.5.14 is marked as Annexure-11).
3. The complainant has further intimated that he has availed a loan of Rs.2,75,000/- from O.P No.4 and there is no dues payable by the complainant to O.P No.1.
4. Since as per the purchase bill the manufacturing date of the tractor is indicated as December, 2012. The O.P No.1 cannot claim that they have supplied the tractor to the complainant prior to Dec, 2012.
5. That the tractor was sold to the complainant by O.P No.1 on 09.01.2013 and Registration papers were handed over to the complainant on 12.01.2013.  Since the tractor was supplied late, the E.M.is were not paid regularly from the date of availing finance from O.P. No.4 for which O.P No.4 seized the vehicle for non-payment of required E.M.Is as on the date of seizure.
6. That the complainant has spent Rs.16,522/- and again Rs.5000/- towards repair of the said tractor after receiving back the tractor from O.P No.4 and such amount needs to be reimbursed by O.P No.1 and O.P No.4.  That vide the said rejoinder the complainant has also prayed to direct O.P No.1 to pay the defaulted amount of E.M.I to O.P No.4.

6. S.I,Madhupatna Police Station vide their letter No.812 dt.11.11.2014(Madhupatna P.S Case No.59/2014) has intimated that during course of investigation it is ascertained that the original money receipts issued by Vikrant Engineers in favour of Smt. Silita Barik are with her.  For the purpose of investigation of the above noted case, she and her husband were advised several times to produce the original money receipt and other documents but she failed to produce the same. On further asking she stated that they have deposited the same in the court.  During investigation 2 nos. of money receipts books (carbon copies) have been seized on production by the Managing Partner of Vikrant Engineers.  On perusal it is found that Vikrant Engineers received a sum of Rs.1,36,000/- vide receipt No.4848 dt.1.4.2011 and Rs.10,000/- vide receipt No.6014 dt.7.1.2012 from Silita Barik.  After verification both the books are left in Zima.  Hence the complainant is held responsible for production of original money receipts.
7. a) In the final report/charge sheet No.131dt.5.11.2014 filed by Madhupatna Police Station in the court of SDJM,Sadar,Cuttack with reference to FIR No.59 ddt.17.5.14 Under Acts & Sections 417/408/409/406/420/465/467/468/471/472/473/474/34.  It is stated that during investigation there is no prime facie evidence could be established under the above sections of law against the accused Prafula Kumar Sahoo,Partner of Vikrant Engineers. (As stated in the certified copy of G.R.Case No.866/2014 as submitted by O.P No.1 on 25.3.2015.

2. From the above report it is also further learnt that Smt. Silita Barik purchased one tractor from Vikrant Engineers on 1.4.2011 and also paid a sum of Rs.1,36,000/- on 7.1.12.  She also paid a sum of Rs.10,000/-.  The finance company paid a sum of Rs.2,30,865/- and further sum of Rs.25,051/- to Vikrant Engineers.  Due to non-payment of the installments the finance company repossesses the above tractor and on this connection Purighat P.S Case No.45/2013 was registered and investigated into.  But complainant got back the vehicle as per direction of the Hon’ble Court.  On their amicable settlement, the complainant received the tractor on 1.4.2011 but the company by mistake issued F form for the year 2013 in favour of complainant which was received in the year 2012.  But the complainant since 1.4.2011 on regular intervals brought the tractor for check up and servicing.  In the meantime while the complainant has also filed a case in the court of District Consumer Disputes Redressal Forum vide case No.199/2013 with intention for non-repayment of rest amount to Vikrant Engineers and installments of finance company.  The complainant also purchased a trolley from Sidhi Durga Engineers on 9.1.2013 on payment of Rs.1,15,000/-.

8. It is also learnt from the letter of the complainant dt.25.03.2015 that the complainant has already made a final settlement with O.P No.4 regarding repayment of his above noted loan Account.  She has already paid a sum of Rs.2,00,000/- to O.P No.4  on 28.2.2015 as per proposal/offer given by O.P No.4 to the complainant vide their letter dt.26.2.2015 towards final settlement of the said loan account and as such the loan account is closed.

The complainant vide her above letter dt.25.3.2015 had also made a prayer to delete O.P No.4 from the complaint.  Accordingly O.P No.4 was deleted from the complaint petition by this Hon’ble Forum on 25.3.2015.

9. We have gone through the case in details and have perused minutely the documents/papers/statements/written brief as submitted by the complainant and also as well by the O.Ps.

Basing on the facts and circumstances as stated above, we have observed as follows:-

a)i) O.P No.4 is deleted from the complaint.

ii)  O.P No.3 has sold the trailer to the complainant and has nothing to do with the case since it is related to the late delivery of the tractor by O.P.1.

iii)   Similarly O.P No.2 has also to do nothing with the case.  As such the case is against O.P No.1 only.

2. O.P No.1 sold the tractor to the complainant vide bill No.CT/200 dt.20.12.2011 for a price of Rs.5,38,000/- whereas form No.21 was given by Vikrant Engineers on 9.1.2013 and the registration of the said tractor was made on 10.01.2013.  It is mentioned in the Form 21 as given by Vikrant Engineers that the tractor was manufactured during December,2012 and handed over to the complainant on 09.01.2013 even if the bill for the said tractor was made on 20.12.2011.
3. The complainant failed to produce the required receipts towards payment of the cost of tractor to O.P No.1 amounting to Rs.5,38,000/-.  No clue is also available in this case that the complainant has paid the full amount to O.P No.1 towards cost of the tractor for which we are constrained to believe that no proof/original receipts etc are available with the complainant towards payment of full cost of the tractor which indicates that full cost was not paid by the complainant for which the tractor was not delivered to the buyer/complainant and was kept with the “unpaid seller” i.e. O.P No.1.
4. The complainant has also not produced any proof that he was eligible to get government subsidy worth Rs.2,50,000/- nor any commitment from O.P No.1 that O.P No.1 will arrange the above subsidy for the complainant .
5. Since the tractor is already with the complainant and loan account relating to the said tractor with O.P No.4 is closed and settled the prayer of the complainant to direct O.P No.1 and O.P No.3 to pay the balance E.M.Is to O.P No.4 does not arise.
6. The complainant has failed to prove that she has paid the full cost of the tractor to the O.P No.1.  Police investigation report also reveals the same fact.

ORDER

Basing on the facts and circumstances as stated above and to meet the ends of justice, we conclude that the complainant has failed to prove deficiency in service on the part of O.Ps, hence the case is dismissed.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 11^th    day of November, 2016 under the seal and signature of this Forum.

   (Sri B.N.Tripathy )

                                                                                                                      Member.

 

                                                                                                                 (Sri D.C.Barik)

                                                                                                                      President.

                                                                                                                

                                                                                                           (Smt. Sarmistha Nath) 

                                                                                                          Member(W).