Date of Filing: 18-06-2013 Date of Final Order: 30-03-2015
The instant complaint has been filed by one Sushil Paul U/ S 12 of the C.P. Act 1986. The fact of case as enumerated from the record is that the Complainant being a cultivator intended to purchase a tractor preferred for loan to the Opposite Party No. 2. After completion of all formalities the O.P. No. 2 sanctioned the loan of Rs.6,50,000/- on 17.02.2011 in favour of the Complainant and also made arrangement with the O.P. No. 1 for delivery of Escorts type Tractor to the Complainant. The O.P No. 1 is the dealer of the Escorts brand Tractor. After sanctioning the loan the O.P. No. 2 issued a delivery order vide order No. 1732/66/FM/2010-11 dt. 21.02.2011 and as per said order the O.P No. 1 delivered the said Tractor along with documents to the Complainant. After using the said tractor suddenly on 24.05.2011 the Complainant came to know from the O.P. No. 2 that the said Tractor is old one and that thunder stork to him. The prime allegation of the Complainant is that the O.P. No. 1&2 intentionally handed over an old Tractor to the Complainant that tantamount to Unfair Trade Practice. In that period on 16.10.2011 the O.P. No. 3 came to the house of the Complainant and demanded the said tractor that this tractor was sold to him and he used the same about 10 months. Knowing the fact the Complainant rushed to the O.P. No. 2 on 18.10 2011 and thereafter to the O.P. No. 1 demanding a new brand tractor but to no good. The O.P. No. 1 said to the Complainant that it delivered the tractor to the O.P. No. 2 and if any dispute arises the O.P. No. 2 will do the needful. The Complainant took loan from the O.P. No. 2 also the alleged tractor was supplied through the O.P. No. 2 and it has business connection with the O.P. No. 1 and in this way they deliberately harassed the Complainant by delivering an old tractor. They cunningly have done this which caused severe mental pain and agony also pecuniary loss to the Complainant. By not getting any co-operation from the Opposite Party the Complainant compelled to file the present case seeking redress and relief(s) as incorporated in the prayer portion of the Complaint.
The Opposite Parties have contested the case contending inter-alia that case is not maintainable in law as well as in fact.
The O.P. No. 1 after entered its appearance by filing W/V denied all most all the allegation leveled by the Complainant against this O.P. This O.P. contended that the Complainant purchased a new tractor with a financial assistance of O.P. No. 2 and the Complainant falsely implicated O.P. No. 1 as a necessary party in this case. Further contention of this O.P. is that it is not possible to sold out a old tractor and if so, why the Complainant did not lodge any complain before the concerned authority also before the O.Ps. Furthermore the Complainant filed an F.I.R. before the Sitalkuchi P.S. on 06.11.2011 against the O.P. No. 3 for theft of the tractor another F.I.R. also lodged on 10.11.2011 for theft of the battery of the said tractor. Thus, it is clear that the Complainant only squeeze some money has filed the present case. Putting all the averments this O.P. prayed for dismissal of the case with cost.
The Opposite Party No. 2 by filing W/V contended that the O.P. No. 2 sanctioned the loan of Rs. 6,50,000/- to the Complainant as per rule of W.B Co-Operative Societies Rules 1987 and after sanctioning the loan the O.P. No. 2 by purchasing a tractor from the O.P. No. 1 delivered the same to the Complainant. The petitioner received the tractor in good condition and the quotation supplied by the O.P. No. 1 reveals that the tractor was the new one. The Complainant being a member of the O.P. No. 2 can not be a consumer of O.P. No. 2 for which no case lie before this Forum against this O.P. If there is any dispute the Complainant is only entitled to solve the same before the Registrar as per Section 134 of W. B. Co-operative Societies Act. The main contention of this O.P. is that the Complainant is a defaulter and filed this Complaint to take undue advantage for which this complaint liable to be dismissed.
After appearance through ld. Agent the O.P. no. 3 has failed to file W/V and further did not come forward before this Forum for which this case proceeded with Ex-parte against the O.P. No. 3.
Both parties filed evidence on affidavit with documents. Perused the same and considered.
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 Opposite Parties any deficiency in service as alleged by the Complainant?
- Whether the complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASON
We have gone through the record very carefully; peruse the entire documents and heard the argument of both the counsels at a length in full.
Point No.1.
The Complainant intended to purchase a tractor took loan from the O.P.No.2 and purchased a tractor from the O.P. No. 1 after payment of certain amount through the O.P. No. 2. Thus, the relation of the Complainant with the O.Ps. so established from the record we are convinced to hold that the Complainant is a “Consumer” of the O.Ps as per section 2(1)(d)(ii) of the C.P. Act.
Point No.2.
The Place of Business & residence of the O.P. Nos. 2&3 are within the district of Cooch Behar. The cause of action arose against the O.P. no. 1 in this jurisdiction. The value of the case is within the limit of Rs.20,000,00/-. So, this Forum has territorial as well as pecuniary jurisdiction to entertain and try the instant case.
It is the case of the O.P. No.2 that in present case the complainant Sushil Paul is Member of their Co-operative Society and filed list of the Members of their Society, which reveals that the complainant is Member No.16398 of the said Society.
It is also the case of the O.P. No.2 that in the present case disputes relate to Co-operative and member of the Co-operative and according to S134 W.B. Co-operative Societies Act, 1983 no such case is maintainable before Consumer Forum. But in view of ruling reported in 1986 – 2006 Consumer 10616(NC) submitted by the complainant disputes arising between a Co-operative Society and its members is maintainable before Consumer Forum.
So, this Forum has every jurisdiction to try this case.
Point No.3 & 4.
It is the case of the complainant that he purchased a Escorts type Tractor 4455 being Serial No.3098772, Engine No. E3109491, Chasis No. B3098662, C/C 4 HP55 from the O.P. No.1, M/S General Engineering, Dhupguri at a price of Rs.6,50,000/- after taking loan from the O.P. No.2, Cooch Behar Co-Operative Agricultural And Rural Development Bank Ltd., Cooch Behar.
It appears from the ‘Annexure-A to D’ of the complainant i.e. copy of Money Receipts that he became member of the O.P. No.2, Cooch Behar Co-Operative Agricultural And Rural Development Bank Ltd., Cooch Behar.
‘Annexure-E’ is Demonstration Challan dated 23/02/2011 regarding the said Tractor.
‘Annexure-F’ is the Sale Certificate dated 23/02/2013 (23/11/2011) regarding the sale of the Escort Tractors to the complainant.
‘Annexure-G’ is the Insurance Policy of the said Tractor.
‘Annexure-H’ is the Delivery Order of the tractor in question by the O.P. No.2 to O.P. No.1.
‘Annexure-I’ is the Loan Sanction Order which reveals that loan of Rs.6,50,000/- was sanctioned to the complainant by the O.P. No.2.
‘Annexure-J’ is a Letter, issued by S.D.O. (Registering Authority) regarding verification of the said tractor.
‘Annexure-K’ is Utilization Report of delivery of the Tractor, issued by the O.P. No.2 which reveals that the complainant received the said tractor in good condition.
‘Annexure-L’ is the temporary certification of registration dated 23/11/2011 regarding Tractor in question.
‘Annexure-M’ is a Certificate dated 15/12/2011 issued by the O.P. No.2 stating that the complainant took loan of Rs.6,50,000/- to purchase tractor.
‘Annexure-N’ is the Delivery Certificate of the Tractor in question.
‘Annexure-O’ is Tax Invoice dated 28/02/2011, which reveals that the O.P. no.1 issued said receipt of Rs.6,53,946/- to the O.P. No.2 regarding Tractor in question of the complainant.
‘Annexure-P’ is the Initial Certificate of compliance with pollution standards, safety standards of competents and Road worthiness.
So, it is clear from the above discussed documents that the complainant purchased an Escort Tractor from the O.P. No.1 after taking loan from the O.P. No.2.
The O.P. No.1 & 2 also did not deny the factum of selling of the Tractor to the complainant in loan.
But main allegation of the complainant in this case is that an old tractor was handed over to him by the O.P. No.1 & 2.
It is also the case of the complainant that on 16/10/2011 the O.P. No.3, Sahadeb Paul came to him and demanded that the said tractor was sold to him and he used the same about 10 months.
But the copy of the F.I.R of Sitalkuchi P.S, Case No.250 dated 16/11/2011 lodged by the complainant, Sushil Paul reveals that he lodged the complaint u/s 379/427 IPC against the O.P. No.3, Sahadeb Paul alleging that the Sahadeb committed theft of said tractor. Copy of Charge Sheet reveals that said case was ended in charge sheet u/s 379/427 IPC against Sahadeb Paul.
So, it is clear that statements made by the complainant in complaint of this case and F.I.R are not all consistent.
We further find that according to the complainant of this case on 16/10/2011 the O.P. No.3, Sahadeb Paul claimed that he purchased and used the said tractor about 10 months.
But it appears from his own case of the complainant that on 21/02/2011 he got delivery of said tractor and since then he was in possession of the same.
If so how Sahadeb on 16/10/2011 was in possession of the said tractor for last 10 months
Copy of the F.I.R of Sitalkuchi P.S, Case No.251 dated 10/11/2011 reveals that the complainant on 10/11/2011 again lodged a complaint that two batteries of said tractor were stolen from his house.
So, it is clear that the complainant has not come to this Forum with clean hand and making false and inconsistent Statement.
In the present case allegation of the complainant is that the O.P. No.1 & 2 are in connivance and they sold an old tractor to him and thereby made illegal trade practice.
But both O.Ps flatly denied said allegation and submitted that they sold a new tractor to the complainant and it is not possible to sell old tractor by them being an authorized agent of Escort Company. More so, the complainant did not lodge any complaint regarding delivery of old tractor to any authority or O.Ps.
Certainly, the complainant did not lodge any complaint before any authority or concerned.
Further on careful scrutiny of the huge documents viz ‘Annexure -A to P’ filed by the complainant we do not find anything which can show that actually any old tractor was sold to the complainant by the O.P. No.1 & 2.
On the other hand in support of this case the O.P. No.1 has filed quotation for tractor (‘Annexure-2’), Tax Invoice (‘Annexure-3’) and utilization report ( Annexure-4) Annexure 2 i.e. Quotation dt. 10.01.2011 reveals that said quotation was submitted by O.P.1 for Escort Tractor Model PT 4455 DCP 16.9T at a price of Rs. 6,53.946.00/-
Annexure 3 i.e. in voice shows that OP1 sold this tractor in question to O.P.2 (A/C Sushil Paul) at a price of Rs. 6,53,946.00.
Annexure 4 i.e. Utilization Certificate dt.23.3.111 reveals that the Complainant Sushil Paul purchased the said tractor by taking loan and he received the said tractor in good condition.
The complainant did not deny the contents of said documents and we do not find any reasons to disbelieve said documents, which clearly show that the present tractor having Engine No. E 3109491 and chassis No B 3098662 was sold to the Complainant from the show room of the O.P. No.,1 on the basis of their quotation .
So, in view of the facts and circumstances stated above we constrain to hold that this complainant has miserably failed to prove his case that an old tractor was sold to him by the O.P. 1 &2.
During hearing of the argument Ld. Agent / Advocate of the Complainant submitted a judgment passed in a case between Progoti Service & Ans Vs. Mukten S/C Ralif & Another by Hon’ble State Commission Gujrat State, where a tractor manufactured in the year 2000 was Sold fraudulently by misrepresenting as new and manufactured in the year 2003. Tractor owner filed complaint claiming compensation with other reliefs said case was allowed and confirmed by the Hon’ble State Commission.
But in this present case we have already held that the Complainant has failed to prove his case that an old tractor was sold to him.
So this judgment is not applicable in this case.
Considering overall matter into consideration and materials on record we find that the Complainant fails to prove his case of cheating and fraud and deficiency in service and the case is liable to be dismissed.
According these points are decided against the Complainant.
Thus the case fails,
ORDER
Hence, it is ordered that,
The DF Case No.26/2013 be and the same is dismissed on contest without any costs.
A plain copy of this order be made available and be supplied to the representative complainant by hand / Registered post free of cost A/D and also to the opposite party forthwith as per rules.
Dictated and corrected by me.
Member 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
