This complaint coming up before us for hearing on                      02-03-12 in the presence of Sri.Y.Rama Seshaiah,, advocate for complainant and of Sri.K.K. Ram Babu, advocate for opposite parties, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

This complaint is filed u/s 12 of Consumer Protection Act praying to direct the opposite party to replace the tractor or to pay compensation of Rs.4,00,000/- besides 15,000/- towards mental agony together with interest @24%p.a., from the date of handling over the tractor to the opposite party till realization and for costs.

2.   The averments of the complaint in brief are as follows:

          Complainant purchased Mahindra 275 DI Tractor from the opposite party (who is dealer of Mahindra & Mahindra Tractors having its office at Tenali) in the month of December 2009 for a valid consideration of Rs.4,25,000/-.  The complainant sold his old tractor to opposite party for Rs.1,50,000/- and the opposite party remitted the said amount to the complainant’s account towards sale consideration of new tractor.  The opposite party also arranged finance to the complainant from Mahindra & Mahindra Financial Services Ltd., Mangalagiri Road, Guntur for the remaining amount of Rs.2,75,000/- by Hypothecating the new tractor with them.  The opposite party arranged delivery of new tractor from Gudivada Dealer.   The complainant handed over his old tractor to the opposite party on the date of purchase of new tractor.  The opposite party has not handed over the documents for the new vehicle to the complainant stating that he has obtained loan from the financer.  As per the conditions mentioned in the documents, the company gave warranty of 2 years for the vehicle.  As per the warranty conditions, if any manufacturing defects are happened, the vehicle will be replaced in the place of old vehicle.  The complainant had registered the vehicle with the transport department as Vehicle NO. AP 07 TW 9451 dated 20^th February 2010.  The complainant has been paying money to the financer regularly.  But some of the police authorities of Tenali approached the complainant and stated that Sri Ram Finance Company lodged a complainant against opposite party, as opposite party hypothecated old tractor which was sold to opposite party with the said Sreeram Finance and obtained loan of Rs.1,50,000/- by the impersonation.  The police authorities also recorded a statement of the complainant.  The opposite party cheated the said finance company and also the complainant without transferring the old tractor obtained    loan by impersonation.

3.     During the last week of April 2011 the engine of the tractor of complainant was seized due to manufacturing defect.  Immediately the complainant informed the same to opposite party. Then the opposite party informed the complainant to handover the vehicle in the opposite party showroom and promised to replace a new vehicle from the company.  As per the instructions of the opposite party complainant handed over he tractor in the show room of opposite party in the last week of April ,2011 itself and requested them to take necessary steps for replacement of tractor.  Then the opposite party promised the complainant that they will replace tractor within in 10 days.  Since then the complainant has been requesting the opposite party to replace the tractor as he is having contract work and sustaining huge loss.   But the opposite party taking un-due advantage of having original documents with them demanding huge amount for replacing new tractor.  Complainant got issued a legal notice dated 20/05/11 to the opposite party demanding replacement of the tractor within 7 days.  But, opposite party managed the postal authorized and got returned the said notice to avoid their legal obligations. Hence the complaint.

Opposite Party filed its version which is in brief is as follows:

4.     The allegations of the complainant are not true and it is not maintainable.  The opposite party’s name is Sri Lakshmi Tractors, but not Lakshmi Motors as mentioned in the complainant.  It is true that the opposite party sold new tractor for Rs.4,25,000/-.  The complainant sold the old tractor for Rs.1,50,000/- but he did not handed over the financing clearing papers relating to the said old tractor which was hypothecated to M/s. Dandapani Finance Limited. The opposite party agent Anji Babu paid an Amount of Rs.35,020/- to the said Dandapani Finance limited on 26/04/2010 on behalf of complainant towards the loan over the said old tractor.   The complainant has to pay the said amount of Rs.35,020/- to opposite party  with interest at 24%p.a.,, Inspite of repeated demands made by opposite party complainant has not paid the said amount till today.  The opposite party paid The New Tractor Registration, Insurance and finance documentation charges totaling to Rs.20,000/- to the concerned authorities on behalf of complainant.  But complainant did not choose to pay the said amount to opposite party so far.  The opposite party also paid an amount of Rs.10,000/- as advance EMI to the financer on behalf of the complainant and he has to pay the said amount of Rs.10,000/- to opposite party.  The complainant has to pay the above said amounts to opposite party along with interest @24% p.a. The complainant took original documents relating to new tractor at the time of delivering vehicle.  It is true that there is warranty for 2 years for the new tractor against manufacturing defects.  Hence the company will repair the said parts but not replace the vehicle   as alleged in the complaint.  Complainant approached opposite party in the last week of April 2011 and said that the engine of new tractor was seized/struck and handed over the vehicle in the company show room for repairing the said defect of engine and the opposite party effected the said repairs with in 3 days even though the complainant failed to pay the above said amounts.  In the mean while the financer of the said new tractor Mahindra & Mahindra Financial Limited gave a stoppage letter to the opposite party on 02-05-2011 stating that the complainant did not pay installment amounts properly and regularly and has to pay an amount of Rs.69,960/- as on that date to the financer.  The opposite party informed the said fact to the complainant and advised him to negotiate the matter with the said finance company.  Subsequently complainant and the said finance company came to opposite party on 13-05-2011 and negotiated with each other and as complainant failed to pay installment amount to the finance company, the finance company seized the new tractor with the consent of the complainant by issuing letter of authority in which the complainant also accepted, acknowledged the same by signing on the said letter of authority.  Thus the opposite party is no way concerned about the said transaction.  The opposite party does not know about the issuance of legal notice by the complainant and they have no necessity   to manage the postal authorities and got it returned as alleged by the complainant.    There is no deficiency of service on the part of opposite party.  Hence, the complaint may be dismissed against this opposite party.

5.     Complainant and opposite party have filed their respective affidavits in support of their versions reiterating the same.

6.     On behalf of the complainant Ex.A-1 to A-13 are marked.  On behalf of opposite party Exs.B-1 & B-2 are marked.

7.      NOW THE POINTS FOR CONSIDERATION ARE :

1. Whether there is a deficiency of service on the part of   opposite parties?
2. To what relief the complainant is entitled to?

8.      POINT NO.1 :-   The case of the complainant is that he purchased a tractor from the opposite party in the month of December,2009 for a consideration of Rs.4,25,000/- , that he sold his old tractor to opposite party for Rs.1,50,000/- and opposite party remitted the said amount to his account towards the sale consideration of new tractor and also arranged finance from Mahindra & Mahindra financial services Ltd., for the remaining amount of Rs.2,75,000/- by hypothecating the new vehicle with them, that he registered his new vehicle with Transport Department, that during the last week of April, 2011 the engine of the tractor was seized due to manufacturing defect and that he handed over his vehicle in opposite party show room to replace a new vehicle, that as the opposite party did not replace the new tractor he got issued a notice dated 20-05-2011 demanding the opposite party to replace the tractor but the opposite party managed the postal authorities and got returned the said notice.  Thus there is a deficiency of service on the part of opposite party.

9.     The case of opposite party is that during the last week of April 2011 complainant approached opposite party as the engine of the tractor was seized and handed over the vehicle to opposite party show room for repairing the same and that the opposite party effected repairs to the said tractor with in 3 days, that in the mean while the financer of the new tractor viz., Mahindra & Mahindra Financial Limited gave a stoppage letter to opposite party on 02-05-2011 stating that the complainant did not pay installment amounts properly and that he has to pay an amount of Rs.69,960/- as on that date to the financer, that they informed the said fact to the complainant and advised to negotiate the matter with the finance company, that they negotiated with each other and as the complainant failed to pay installment amount to financer, the finance company seized the new tractor with the consent of the complainant, that the complainant acknowledged letter of authority by signing the same that they have no knowledge about the legal notice issued by complainant, and thus there is no deficiency of service on their part.

10.   It is not in dispute that the complainant has purchased a new tractor from the opposite party for a sum of Rs.4,25,000/- during December, 2009 and sold his old tractor to the opposite party for a sum of Rs.1,50,000/- and that the said amount was adjusted towards the value of the new tractor and that opposite party arranged finance through Mahindra & Mahindra Financial Limited for  a remaining amount of Rs.2,75,000/-.  It is also not in dispute that the complainant handed over his new tractor to opposite party during the last week of April, 2011 as the engine of the tractor was seized for repairs.

11.   A Perusal of Ex.B-1 stoppage letter dated 02-05-2011 and   Ex.B-2 letter of authority dated 13-05-2011 shows that as the complainant defaulted to pay the installments, the financer requested the opposite party not to release the vehicle to the complainant without their consent.  On 13-05-2011 under Ex.B-2 the financer seized the vehicle with the consent and acknowledgement of the complainant as the complainant has to pay the arrear amount of Rs.69,960/-.  Ex.B-2 shows that the complainant voluntarily surrendered the vehicle to the representative of the financer in accordance with their rights vested with the finance company under the terms and conditions of loan agreement as he violated by defaulting in scheduled repayment of the loan since complainant signed in Ex.B-2 letter of authority.  Therefore it can be safely concluded that the vehicle in question was seized by the finance company from the position of the opposite party with the consent and acknowledgement of the complainant.  In view of the facts and circumstances of the case and in view of the foregoing discussion we can not find any deficiency of service on the part of opposite parties.  Accordingly this point is answered.

12.    POINT NO. 2 :-  In view of the foregoing discussion on Point No. 1  the complaint is liable to be dismissed.

13.   In the result, the complaint is dismissed but in the circumstances of the case each party shall bear their own costs.

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 13^th day of March, 2012.

MEMBER                                  MEMBER                           PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:

                                                                             PRESIDENT