Haryana

Ambala

CC/55/2020

Alamgeer - Complainant(s)

Versus

M/s S.D. Honda Trading Corporation. - Opp.Party(s)

P.S. Sharma

20 Jun 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	55/2020
Date of Institution	:	11/02/2020
Date of decision	:	20.06.2023

 

Alamgeer aged 37 years s/o Sh.Telu Ram r/o # 9, Raomajra, Tehsil Naraingarh District Ambala.

……. Complainant

versus

 

1. M/s S.D. Honda Trading Corporation, General Sales & Service Dealers of Escort & Farmtrac Tractors and their parts, Kala Amb Road, Naraingarh District Ambala.
2. Escorts, Escorts Ltd, Escorts Agri Machinery, 18/4, Mathura Road, Faridabad through its Managing Director (Haryana)

                                               

….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Prem Sagar Sharma, Advocate, counsel for the complainant

                    Shri U.S. Chauhan, Advocate, counsel for the OPs

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To replace the tractor by Model of 2017 for which the complainant paid the price in place of tractor of model of 2016 or to pay/refund Rs.2,00,000/- as in the year 2017, the Farmtrac tractor of the model of 2016 was available in the market at Rs.2,00,000/- lesser from its original price;
2. To pay Rs.1,00,000/- for mental torture and harassment;
3. To pay Rs.30,000/- as litigation charges.

                                       OR

Grant any other relief which this Hon’ble Commission may deems fit.

2.            Alongwith this complaint, the complainant has also filed application for condonation of delay of 280 days in filing the same, to which, reply was also filed by the OP No.1. 
3.           Brief facts of the case are that OP No.2 is the manufacturer of Farmtrac Tractors and OP No.1 is the dealer of OP No.2 for selling Farmtrac tractors in Naraingarh District Ambala (Haryana). The complainant is an illiterate person and is an agriculturist by profession. The complainant earns his livelihood from agriculture. As such, he approached OP No.1 for purchase of Farmtrac Tractor Model 2017 and has purchased Farmtrac Tractor model 2017 from the OPs on 16-5-2017 for a sum of Rs.6,90,000/- which was financed by Magma Fincorp Ltd. At the time of purchase of the tractor, the complainant was told by the representatives of  OP No.1 that the Model of the Tractor is 2017 and the same was duly written in FORM No.21 filled by  OP No.1 and the tractor was got insured by OP No.1 from Royal Sundaram General Insurance Co. Ltd. in its premises itself on 16-5-2017 with Year of Manufacturing /Model of the Tractor as 2017. Thereafter  OP No.1 itself sent the documents for registration in the office of the Registering Authority (MV)-cum- Sub Divisional Magistrate, Naraingarh and the Tractor in question was registered vide Registration No. HR04-G-3295. The complainant remained under the impression that the Year of Manufacturing/Model of the Tractor in question is 2017 and has not checked the registration certificate being the illiterate person as well as believing  OP No.1. In the month of November, 2019 the complainant and his mother Smt.Salamati were seriously ill, on account of which the complainant was in dire need of money for his treatment, as he was not having sufficient money with him to meet the expenses of his treatment and treatment of his mother. So, the complainant planned to sell out the tractor in question and handed over the Xerox copy of the documents of the tractor to the prospective buyer. However, the prospective buyer after verification informed that the Model of the Tractor in question is not 2017 and is 2016 as mentioned in the Registration Certificate (RC) of the tractor in question as '12/2016' and the rate of the tractor in question is about Rs.2,00,000/- less. OP No.1 has wrongly and with a malafide intention and adopting unfair trade practice, intentionally, sold the 2016 Model tractor alleging the same as 2017 Model, though the complainant purchased the 2017 Model tractor. OP No.1 intentionally by adopting unfair trade practice also mentioned the year of Manufacturing/ model as 2017 on FORM 21. Even the insurance was also got done of the tractor in the agency itself with year of Manufacturing Model as 2017 in place of 2016. Thereafter the complainant immediately approached  OP No.1, on which  OP No.1 felt sorry and assured to replace the tractor in question with new one of the Model of 2017 but to no avail.  Hence this complaint.
4.           Upon notice, OP No.1 appeared and filed written version wherein it raised preliminary objections to the effect that the application for condonation of delay in filing the present complaint is not maintainable;  the complaint filed by the complainant against OP No.1 is false, frivolous and filed with malafide intention; the complaint is not maintainable; the complainant has not come with the clean hands and has suppressed the real facts; the complainant has not made any communication with OP No.1 etc. On merits, it has been stated that the complainant had purchased tractor from the OP on 16.05.2017 for Rs.6,90,000/- besides insurance charges and other misc. charges.  Total amount to be paid by the complainant was Rs.7,05,925/-, out of which the complainant has paid Rs.12,000/- from his pocket and Rs.5,88,050/-, received from the Finance Company-Magma Fincop Ltd. against the said tractor. In this way there was short fall of Rs.1,05,875/- against the complainant and he requested that he will pay the due amount after some time. OP No.1 keeping in view their relationship believed the words of the complainant and agreed to deliver the tractor to the complainant on credit basis which is evident from the invoice of the tractor, which was issued as credit memo to the complainant but later on  he failed to pay the same.  As per Form-21 i.e. sales certificate, it is clearly stated at serial no. 8 that 'Month and Year of Manufacture/Sale and it is admitted by the complainant that he has purchased the tractor in 2017, meaning thereby in the sales certificate it is rightly written that the year of sales is 2017 and this fact is well within the knowledge of the complainant that manufacturing of the tractor was 2016. As a matter of fact, the tractor in question was dispatched from the parent company on 31st December, 2016 and the same was sold to the complainant in the year 2017. Had the grouse of the complainant been genuine then the complainant would have raised the same well in time. Moreover, there was no difference in the resale price of the tractor either in 2016 or 2017. The complainant was fully aware from the day one that as per the registration certificate, the manufacturing year of the tractor is 2016, then the question of knowing this fact in the month of November 2019 does not arise at all. The complainant has never raised any dispute with regard to the model of manufacturing year of the tractor. OP No.1 and OP no. 2 are operating on principle to principle basis, so the question of fasten the liability severally or jointly does not arise either on OP No.1 or on OP no.2.  Rest of the averments of the complainant were denied by the OP No.1 and prayed for dismissal of the present complaint.
5.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections to the effect that the complainant does not fall within the scope of definition of a "consumer" as he has engaged in resale of the tractor purchased by him and claimed loss on such sale; the complaint deserves to be dismissed qua OP No.2 as no specific allegation has been levelled against it; there is no cause of action against OP No.2 etc. On merits, it has been stated that it is a leading manufacturer of tractors in India and abroad since 1960. The tractors of the OP No.2 are manufactured by a highly skilled work force and modern machines to ensure that every tractor produced is of highest quality and provides utmost consumer satisfaction. There is no privity of contract between the complainant and OP No.2 with respect to purchase of the tractor. The complainant has not levelled a single allegation of manufacturing defect in the tractor. The issue of sale of allegedly older model of the tractor arose between the OP No.1 and the complainant only.  OP No.2 operates on a principal-to-principal basis with its Authorized Dealers. As per the Tax Invoice/Dispatch Advice/INS Cover Note dated 31.12.2016, the tractor purchased by the complainant was manufactured in December, 2016 and delivered to the Authorized Dealer on 31.12.2016.  Rest of the averments of the complainant were denied by the OP No.2 and prayed for dismissal of the present complaint with heavy costs.
6.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure C-1 to C-15 and closed the evidence on behalf of the complainant. Learned counsel for the OPs tendered affidavit of Sanjeev Swami son of Shri Dhar Swami, Prop. of M/s S.D.Trading Corporation, Ambala City Proprietor of  OP No.1 Company-M/s S.D. Honda Trading Corporation, Ambala City and Abhijeet Negi, authorized representative of M/s Escorts Limited having its registered office at 15/5, Mathura Road, Faridabad-121003 as Annexure OP-/1A and OP-2/A alongwith documents Annexure R-1 and closed the evidence on behalf of the OPs. Learned counsel for the OP No.1 tendered additional evidence by way of documents Annexure OP1/1 to OP1/3 and closed the additional evidence on behalf of OP No.1.
7.           We have heard the learned counsel for the parties on the application for condonation of delay and also in the main case and have also carefully gone through the case file.
8.           Learned counsel for the applicant/complainant submitted that though there is no delay in filing this consumer complaint, yet, as a precautionary measures he has moved this application for condonation of delay of 280 days because the tractor in question was purchased on 16.05.2017, from OP No.1, yet, it was for the first time  in the month of November, 2019 when he was going to sell it, due to some financial constraints, that he came to know that the Model of the Tractor in question is not 2017 and is 2016 as it was  mentioned in the Registration Certificate (RC) of the tractor in question as '12/2016. Since then the applicant/complainant has been continuously requesting the  OPs to replace the 2016 model tractor sold to him by adopting unfair trade practice, with 2017 model tractor but the OPs failed to do so. He further submitted that sufficient grounds for condoning the delay in filing this complaint have been explained, which is neither intentional nor deliberate, but due to reasons stated above.

                   On merits of the case, it has been submitted that by selling the old model tractor in question, by presenting it of2017 Model, the OPs have indulged themselves into unfair trade practice and by not replacing the said tractor with a new one or refunding the price thereof, they are deficient in providing service.

9.           On the other hand, learned counsel for the OPs submitted that the complainant never raised any dispute after receipt of the registration certificate of the tractor with regard to its manufacturing year, which is 2016 only. He further submitted that this complaint has been filed by the complainant  in order to evade its liability of making remaining amount towards the tractor in question. He further submitted that the huge delay of 280 days  should not to be condoned and this complaint shall be dismissed being barred by limitation.
10.           First coming to the application for condonation of delay of 280 days  in filing this complaint.  We have perused this application, from where it depicts that it is the own case of the applicant/complainant that despite the fact that the registration of the tractor in question had been done in December 2016, vide registration certificate (Annexure C-7) yet, the said fact was noticed by him only in the November 2019, as a result of which, he contacted the OPs in the matter, but they failed to redress his grievance, which resulted into filing of this complaint on 11.02.2020. He has also fairly conceded in his complaint that he remained under the impression that the Year of Manufacturing/Model of the Tractor in question is 2017 and has not checked the registration certificate being the illiterate person as well as believing  OP No.1. Thus, this admission in itself is sufficient to hold that this complaint has not been filed within a period of two years from the date of cause of action i.e. from December 2016. The plea taken by the complainant that, he, for the first time noticed in November 2019 regarding model of the tractor in question to be of 2016 instead of 2017, especially, when admittedly, he was in the custody of registration certificate Annexure C-6 in December 2016, does not merit acceptance, and this plea could not be said to a sufficient cause to condone the delay of 280 days. In the catena of judgments of Hon’ble Supreme Court and the Hon’ble National Commission, the delay without explanation of sufficient cause has not been condoned viz. Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108; Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361 and Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. 2012 STPL(Web) 132 (SC).  Also, the Hon’ble Apex Court in a recent case Sanjay Sidgonda Patil vs. Branch Manager, National Insu. Co. Ltd. & Anr., Special Leave to Appeal (Civil) No.  37183 of 2013 decided on 17.12.2013, confirmed the order of the National Commission and refused to condone the delay of 13 days. Thus, in our considered opinion, filing of this complaint on 11.02.2020, especially, when cause of action arose to the complainant in December 2016, is hopelessly time barred. In our view, the huge delay aforesaid was due to own peril of complainant itself.  Therefore, we are not inclined to condone such huge delay. 
11.           It is significant to mention here that though on merits even, the learned counsel for the complainant has tried to strengthen his case on similar grounds, as have been taken in the application for condonation of delay, yet, it is reiterated that it has not been clarified by the complainant as to why he maintained silence for more than three years, after receiving registration certificate dated December 2016 in respect of the tractor  in question, wherein its model was mentioned as 2016 instead of 2017. In our considered opinion, once the complainant had utilized the said tractor  for more than three years and at the same time, no defect therein has been reported by him even by the date of hearing arguments in this complaint in the year 2023, as such, now after such a long time, complainant has filed the present complaint,  especially, with regard to model of the tractor in question, which fact was in his knowledge at the time of getting its registration done. Therefore it is not a fit case, wherein any relief can be granted to the complainant.
12.           As far as reliance placed by counsel for the complainant on K.K. Prabhakaran Vs. P.M. Suresh, Appeal No.896 of 1999 decided on 19.11.1999, decided by Hon’ble Kerela State Commission is concerned, it may be stated here that  this case  relates to the  defect in TV, which was found defective on examining warranty card. As such, since the facts of this case, being completely different from the facts of the present case, no help can be drawn by the counsel therefrom, especially, when it has been held above that the complainant has failed to convince this Commission, as to why he maintained silence for more than three years, after receiving registration certificate dated  December 2016 in respect of the tractor  in question.
13.           For the reasons recorded above, this complaint stands dismissed being barred by limitation and devoid of merits, with no order as to costs. The case file be consigned to record room. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

                  

Announced:- 20.06.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President