Date of Filing: 10.07.2014 Date of Final Order: 01.10.2015
The brief facts of the case as can be gathered from the record is that the O.P. No.2, Sukumar Barman, Salesman of M/S General Engineer, Dhupguri came to the house of the Complainant and offered the Complainant to purchased a Tractor from his concern i.e. the O.P. No.1, M/S General Engineer, Dhupguri with assured that he would manage to sanction loan for the said purpose in favour of the Complainant, Santosh Das from A.R.D. Bank (Co-operative bank), Cooch Behar. Thereafter, the Complainant agreed to purchase Tractor from the O.P. No.1 and deposited Rs.1,15,000/- to the O.P. No.1 as demanded by him. On 04/11/2011 after receiving the said amount from the Complainant, the O.P. No.1 delivered a Tractor being Model No. Power Tract 4455DX, Engine No.E3180025, Chassis No.B3161752 without issuing any Money Receipt or any papers against such payment or of the said Tractor but at that time the O.P. No.1 given the Complainant a details of such payment along with the acknowledgement of receipt of the said amount. After some days from the purchase of the said Tractor, the Complainant went to the O.P. No.1 for enquiring the said assurance of loan given by the O.P. But the O.P. No.1 used to avoid the Complainant on various pretexts. After that on several occasion, the Complainant contact with the O.P. No.1 & 2 but all in vain. Thereafter, the Complainant went to the O.P. No.4, Branch Manager, A.R.D. Bank, Cooch Behar to enquiry the exact matter but it came to notice to the Complainant that for deceiving the Complainant, the O.P took the Complainant to this bank.
The Complainant further stated in his complaint that Madhab Das, son of the Complainant purchased one Rotery Tiller for the said Tractor by payment of Rs.1,00,000/- and against the said purchased of Rotery Tiller this time also the O.P. No.1 did not issued any Money Receipt or any papers against such payment of Tractor. But the O.P. No.1 only issued Quotations of the said purchased to deceive the Complainant and in this way the O.P. No.1 received total Rs.2,42,000/- on various occasions by deceiving the Complainant.
On 10/02/2013 when the Complainant was cultivating his land with his tractor suddenly, the O.P No.1 along with his yes men forcibly, illegally took away the said tractor from the Complainant. After that the Complainant repeatedly approached to the O.P. No.1 to get back the said tractor but all in vain. Ultimately, the Complainant realized that the O.Ps have played a game with him for earning money by adopting their unfair trade practice, negligent and by way of cheating.
By such act of omission and commission by the O.Ps, the Complainant has been suffering from mental pain & agony and huge monetary loss and the Complainant entitled to get relief, he filed the present case before the Forum with relevant documents and prayed for direction to the O.Ps to pay (1) Rs.2,42,000/- with up to date interest which received from the Complainant, (2) Rs.10,000/- for mental pain & agony and harassment, (3) Rs.50,000/- for unfair trade practice and (4) Rs.50,000/- towards compensation, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No.1, Mr. Asit Saha, Proprietor of M/S General Engineer, Authorized dealer of Escorts Ltd., Dhupguri, has contested the case by filing his written version denying all material allegation of the complaint contending inter-alia that the Complainant has no cause of action to bring this case and the case is not tenable in law. The main allegation of the O.P. No.1 is that One Madhab Das booked one Rotarry Treller from this O.P. No.1. But the Complainant neither booked nor purchased any new tractor from the O.P. No.1. Therefore, the Complainant is not a consumer under the C.P. Act, 1986. The O.P. No.1 further contended in his written version that one tractor delivered to the Complainant for demonstration only not sold the tractor to the Complainant. The O.P. No.1 also stated that if the Complainant purchased any tractor from this O.P. No.1, he should be filed Invoice, Registration, Insurance, Sale Certificate etc. But there was not filed any documents regarding purchased the tractor by the Complainant.
Therefore, there is no negligence and unfair trade practice on the part of the O.P. No.1 and ultimately, the O.P. No.1 prayed for dismissal of the case with sufficient costs.
In-spite of due service of notice the O.P. No.2, Sukumar Barman, Salesman of M/S General Engineer, Dhupguri, O.P. No.3, Bakul Datta, S/o. Lt. Manmohan Datta and the O.P. No.4, Branch Manager, A.R.D. Bank, Cooch Behar, all these O.Ps did not appear before the Forum and accordingly the case was heard ex-parte.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and also heard both the counsel at a length. Perused the entire relevant documents of the parties in the record along with Written Argument.
Point No.2.
The O.P. No.3, Bakul Dutta is resident of Khattimari within Cooch Behar district and the O.P. No.4, ADR Bank has Branch Office at Khudiram Sarani, Cooch Behar town.
So, this Forum has territorial jurisdiction to try this case.
Total valuation of the present case is Rs.3,52,000/- which is far less than maximum pecuniary limit of this Forum i.e. Rs.20,00,000/-. So, this Forum has pecuniary jurisdiction to try this case.
Point No.1 & 3.
Both points are taken up together for convenience of discussion as they are related to each other.
The Complainant, Sri Santosh Das in his complaint and evidence has claimed that he purchased a tractor being Model No. Power Tract 4455 DX on payment of Rs.1,15,000/- to the O.P. No.1, Ashit Saha, dealer of Escort Ltd. But he did not issue any money receipt or paper against such payment.
In support of his case the Complainant has filed an original document i.e. Business Reply inland, which was to be sent to the Escort Ltd., Haryana by the Complainant. Though said inland letter was filed up and signed by the Complainant but evidently he did not send the same by post to the Escort Company.
He has also filed a booklet of Power Tractor (Model No.4455) Feedback lying in the said book is filled up in the name of the Complainant with address but the same does not bear any seal, signature of any person. There is a page regarding particulars of the customer of tractor (Jankari). Said printed page in Hindi is filled up in the name of the Complainant and bears an illegible signature with seal of M/S General Engineering. Other pages of the said books are lying without filling up condition.
Certified copy of the formal FIR and FIR reveal that the Complainant has filed Ghokshadanga P.S. Case No.181/14 dated 14/07/2014 u/s 406/420 IPC against the O.P. No.1 & 2 alleging that he purchased the tractor in question from the O.P. No.2 on payment of Rs.1,15,000/-. But the O.P. No.1 delivered the tractor without giving any money receipt or other papers and lastly on 10/02/2013 the O.P. No.1 forcibly took away said tractor from him with help of his yes-man. Carbon copy of the seizure list dated 18/07/2014 in connection with Ghokshadanga P.S. Case No.181/14 shows that one Challan/Delivery slip regarding tractor in question was seized by police from the Complainant. But the Complainant has not filed the said original Challan or Xerox copy of the same before this Forum.
Police also seized a paper regarding Financial and Commercial needs of the Complainant. Xerox copy of the said paper (Annexure-1) shows that Rs.1,00,000/- was to be paid on 20/11/2014 at the time of service. In reverse page of the same some accounts have been noted without any signature and date.
Police also seized a Job Card on the basis of the said seizure list. Xerox copy of the said Job Card (Annexure-4) shows that on 29/11/2011 service was rendered and oil leakage was repaired regarding tractor in question.
Police also seized one hand bill issued by M/S General Engineering and copy of one application for membership of Cooch Behar Co-operative Agricultural and Rural Development Bank. But copy of the said documents are not forth coming before this Forum.
During filing of the case the Complainant filed Xerox copy of a page of diary (Annexure-3). Some things are written in the said page in Bengali but without any signature. He also filed a money receipt of Rs.7,000/- dated 07/02/2013 issued by M/S General Engineering to the Complainant.
During hearing of argument Ld. Agent/Adv. Of the Complainant has given much trace upon the Annexure-4 i.e. Job Card issued by the O.P. No.1.
But the Ld. Agent/Adv. Of the O.P. No.1 submitted that the O.P. No.1 delivered the tractor in question to the Complainant for demonstration only nor sold the tractor to him and as per guideline of the company any tractor after/within running of 300 Hrs., is to be produced before service centre for service and Annexure-4 was issued after proper service.
We think such type of contention can be hardly believed that the O.P. No.1 has given the tractor in question to the Complainant only for demonstration.
However, in consumer cases entire onus is upon the Complainant to prove his case.
In civil cases the plaintiff is to succeed on the strength of his own case and not upon any lacuna of the opponent.
Consumer cases are like civil nature and same principle is also applicable in the present case.
Now let us consider how far the Complainant has been able to prove his case of purchasing tractor, in question, from the OP No.1.
We have already discussed the documents submitted by the Complainant to prove his case like Business Reply Inland, Booklet, Certified copy of FIR, and formal FIR, Carbon copy of the seizure list, paper regarding financial and commercial needs of the Complainant, Job card of the tractor and Xerox copy of a page of diary and money receipt for Rs.7,000/-. But none of the said documents directly relate to purchase of the tractor, in question, or payment.
During hearing of argument, Ld. Agent/Advocate of the Complainant has given much reliance upon reversed page of Annexure-1 i.e. Xerox copy of financial and commercial needs of the Complainant. In Bengali there it is noted that valuation of tractor is Rs.6,57,896/-, valuation of plough and hood are Rs.23,000/- and registration costs is Rs.8,000/- totaling Rs.6,88,896/- and after discount of Rs.16,447/-total amounts came down to Rs.6,72,449/-. After deduction of Bank loan of Rs.6,50,000/-, balance amount will be Rs.22,449/-.
In latter part of the said paper, it is written in this way –
Fixed Deposit Rs.1,00,000/-
Share Rs.5,000/-
Bank charge Rs.12,000/-
Insurance Rs.30,000/-
Body Insurance Rs.3,500/-
Rs.1,72,949/-
Receive money Rs.1,15,000/-
Balance Rs.57,949/-
There is no specific mention that for what purpose said paper was prepared and who prepared same and the said paper does not bear any name or signature. The said document is a Xerox copy. So, we think no reliance can be placed upon said documents.
It appears from the Seizure List that a challan/delivery slip regarding the tractor, in question, dated 04.11.11 issued by the OP No.1 to the Complainant has been seized by the police from the Complainant. Said Delivery Challan is certainly a vital document of this case. But the Complainant has not made any attempt to file original, even Xerox copy of the same though the Complainant has filed Xerox copy of other seized documents.
To prove the case that he purchased the tractor from the OP No.1 and he is consumer under Section 2(1)(d)(ii) of the CP Act, the Complainant is to produce Invoice/Challan of the tractor but he has failed to do so. Other documents filed by the Complainant cannot be treated as conclusive prove of purchase of the tractor, in question, by him from the OP No.1.
It is the next case of the Complainant that Madhab Das, son of the Complainant purchased one Rotery Tiller for the said Tractor by payment of Rs.1,00,000/- and against the said purchase of Rotery Tiller that time also the O.P. No.1 did not issued any Money Receipt or any papers against such payment of Tractor. But the O.P. No.1 only issued Quotations of the said purchase to deceive the Complainant
In support of his case, the Complainant has only filed two copy of Quotation for Rotery Tiller issued by the O.P. No.1 in favour of one Madhab Das S/O the Complainant.
Said Quotation cannot be treated as invoice/challan for sale of the said Rotery Tiller. More so, the said Madhab Das is a separate legal entity and the Complainant has no locus standi to file any case on behalf of his son, specially who is alive.
Considering the overall matter into consideration and materials on record, we are constrained to hold that the Complainant failed to prove his case that he is consumer of the Ops and also has failed to prove any case of deficiency in service and unfair trade practice against the O.Ps.
Thus, the point No.1 & 3 are decided against the Complainant.
Point No.4.
In view of above made discussion, the Complainant is not entitled to get any relief in this case. So, this point is also decided against the Complainant.
Accordingly, the case fails.
ORDER
Hence, it is ordered that,
The DF Case No.41/2014 be and the same is dismissed on contest against the O.P. No.1, Mr. Asit Saha, Proprietor of M/S General Engineer. Also dismissed in Ex-parte against rest O.Ps i.e. the O.P. No.2, 3 & 4. No costs.
Let plain copy of this Final Order be made available and be supplied free of cost, to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
President President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member Member
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
