Haryana

Charkhi Dadri

CC/17/2019

Khajan Singh - Complainant(s)

Versus

M/S Vinayak Tractors, - Opp.Party(s)

Complainant in Person

07 Jun 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHARKHI DADRI.      

 

                                                                   RBT CC No.           17/26.08.2019

Complaint No.        88 of 2019

                                                                   Date of Institution: 28.03.2019

                                                                   Date of order:          07.06.2024        

 

Khajan Singh so of Shri Hargyan Singh, resident of village Tikan Kalan, Tehsil and District Charkhi Dadri

…..Complainant.

                                                VERSUS

1. M/s Vinayak Tractors, Delhi Road, Charkhi Dadri, Tehsil and District Charkhi Dadri through its Proprietor Suresh Goyal.
2. Magma Fincrop Limited, Magma House, 24 Park Street, Kolkata-700016 through its authorized representative.

                                                                                       …..Opposite parties. 

          COMPLAINT UNDER THE CONSUMER PROTECTION ACT

Before-        Hon’ble Shri Manjit Singh Naryal, President.

Hon’ble Shri Dharam Pal Rauhilla, Member.

 

Present:       Shri Ajay Verma, Adv. for complainant.

Shri Sunil Siwan, Adv. for OP No. 1.

OP No. 2 exparte vide order dated 28.01.2020.

 

ORDER

          Shri Khajan Singh (hereinafter referred to as “the complainant”) had filed the present complaint against the opposite parties (hereinafter referred to as “the OPs”) with the averments that the complainant had purchased one ACE Tractor bearing registration No. HR-19L-8306 for a sum of Rs. 4,68,000/- from OP no.1 in the month of October 2016 and financed  from OP no.2. The complainant started doing agriculture work with the help of tractor, then after some days there was some defect in the indicator and the engine of the tractor making noise and the lift system of the tractor also stopped functioning. The complainant contacted the OP No.1 with regard to above problem.  The OP no.1 changed the battery and hand over the tractor to the complainant and assured that the tractor would work smoothly.  Despite this the tractor did not function as a new one and it seems to be old tractor. The complainant got tested the tractor from private mechanic and then the complainant came to know that the tractor was old one and the same was sold by the OP No.1 in collusion with OP No.2  by saying it to be a new tractor after doing paint work etc.  The complainant met with one Jai Bhagwan son of Sh. Chatter Singh, resident of village Mahrana, recovery agent of agency of OP No.1, who told that the aforesaid tractor was previously sold to one Rakesh son of Mewa Singh, resident of village Patuwas, Tehsil and District Chakrhi Dadri.  The tractor remained with Rakesh for about 9 months. Then the complainant confirmed the facts from Rakesh son of Mewa Singh, who accepted the fact of purchasing the aforesaid tractor from OP No.1 and further told that due to non availability of finance/loan amount, the tractor was handed over to OP No.2 after using it for a period of 9 months. It is pertinent to mention here that the registration certificate  was got prepared by OP No.1 itself and the chassis number and engine number were replaced with each other in the registration certificate of the tractor by playing fraud with malafide intention. In form No.21 of the said tractor, the engine number is mentioned AGOTUAE0001282 and chassis number is mentioned as UAE350022954 whereas in the registration certificate of the vehicle its engine no. is UAE350022954 and Chassis no. is mentioned as AGOTUAE0001282, which itself reflects the fraud committed by the OP no.1. It is also pertinent to mention here that the tractor was financed from OP no.2 and at the time of finance, ten blank cheques bearing serial no.556181 to 556190 of Punjab National Bank, JVMGRR College, Charkhhi Dadri were obtained by the OP no.1. on 14.03.2017 at about 11-00 A.M.  The complainant alongwith Ravinder son of Bhoop Singh met with OP No.1 and asked to change the tractor and return blank cheques, then the OP No.1 misbehaved and also abused and threatened the complainant.  In this regard the complainant moved applications to police as well as CM window but all in vain. It amounts to a grave deficiency in service on the part of the OPs. Hence, the complainant has come to this Commission and filed the present complaint with the prayer to direct the OPs to refund entire amount  i.e. Rs. 4,68,000/- paid to OP No. 1 at the time of purchasing  the tractor  alongwith interest upto date and in alternate the OP no.1 may kindly be directed to handover a new tractor in place of old tractor and to return all blank cheques which were obtained  by the OPs at the time of finance of tractor and Rs.1,00,000/- compensation for mental pain, agony and physical harassment. Any other relief which the Hon’ble Commission deem fit and proper may also be granted.

2.                Upon notice, OP No.1 appeared through counsel and submitted that OP No.1 sold new tractor to the complainant and got tractor financed from the OP No.2.  It is alleged that there is neither any defect in the indicator and nor the engine of the tractor making noise and the lift system of the tractor was functioning properly.  There was some battery problem and OP No.1 changed the battery.  It is wrong that OP No.1 is in collusion with the OP No.2 sold the old tractor to the complainant by saying it to be a new tractor after doing paint work etc. The above said tractor was never sold to Rakesh son of Mewa Singh, resident of village Patuwas.  The tractor not remained with above said Rakesh for about 9 months or any time. There is clerical mistake in chassis no, it can be rectified by giving an application in Registration Authority.  It is averred that the OP has not rendered any deficient services to the complainant. Thus, complainant is not entitled to get any relief against OP No.1 and prayed for the dismissal of the present complaint.

3.                The OP No. 2 Magma HDI Gen. Insurance appeared and filed written statement and also moved an application for deleting its name and im-pleading Magma Fincorp a finance company as OP No. 2.  Vide order dated 14.10.2019 said application was allowed.  Amended title was filed and notice to OP No. 2 Magma Fincrop Limited was issued through registered post, but the OP No.2 failed to appear before the Commission.  Hence the OP no.2 was proceeded against exparte vide order dated 28.01.2020 due to non appearance before the Commission.

3.                The complainant in support of his case has filed his affidavit Ex. CW1/A and tendered the documents Annexure-C1 to Annexure C10 and evidence of the complainant was closed on 02.08.2021.

4.                On the other hand, learned counsel for the OP No.1 has tendered affidavit Ex.RW-1/A and document Ex.R1 to Ex.R11 and mark document R1 & R2 in evidence of the OP No.1 and closed the evidence on 31.10.2022.

5.                We have heard the arguments advanced by learned counsel for both parties. All the documents have been perused very carefully and minutely.

6.                After hearing the learned counsels for both the parties and having gone through the material available on the records, we are of the considered view that the complaint in hand deserves acceptance, as there is deficiency in service on the part of the OP No. 1.  The complainant has fully proved his case by placing on record certain documents.  On the other hand, the OP No. 1 has failed in proving its stand taken by them in their written statement.  It is admitted by both the parties that the complainant had purchased a tractor from the OP No. 1 in the month of October, 2016.  The only question in this case is whether the tractor sold by the OP No. 1 to the complainant was new or old.  The complainant has placed on record copy of affidavit of one Shri Siri Bhagwan as Annexure C6.  From the perusal of affidavit Annexure C6, it is clear that Siri Bhagwan was working with OP No. 1 as recovery agent.  It is also stated by Siri Bhagwan that earlier the tractor in question was sold to one Shri Rakesh son of Shri Mewa Singh, resident of village Patuwas, Tehsil Charkhi Dadri.  He further stated that due to some reasons the tractor was returned to the agency by Shri Rakesh.  He further stated that after repairing and painting, the tractor in question was sold to the complainant by the agency.  The complainant had initiated Criminal proceeding under Sections 420, 467, 468, 471, 323, 506 & 34 of IPC in the Court of JMIC, Charkhi Dadri, where statements of the complainant Khazan Singh, Sh. Siri Bhagwan, recovery agent of OP No. 1, Shri Ravinder, Shri Rakesh, first purchaser of tractor, have been recorded.  The complainant has also placed on record copy of his statement dated 15.12.2017 before SDJM, Charkhi Dadri as Annexure C12, copy of Statement of one Sh. Siri Bhagwan dated 15.12.2017 before SDJM, Charkhi Dadri, copy of statement of Shri Ravinder dated 26.9.2018 before SDJM, Charkhi Dadri as Annexure C13 and also placed on record copy of statement of Rakesh son of Shri Mewa Singh, resident of village Patuwas given by him in the court of JMIC, Charkhi on dated 5.12.2018.  Perusal of all the statements itself shows that the OP No. 1 has sold the tractor in question earlier to one Shri Rakesh and then again to the complainant.  As discussed above, it is clear from all above statements that tractor in question has been used by Shri Rakesh for 9 months, prior to selling the same to the complainant and case has been filed in Civil Court by the complainant in this regard.  However, the decision of the said case is awaited, as no copy of order/judgment is placed on file by the complainant.  It is admitted fact that the tractor was sold to the complainant for Rs.4,68,000/- vide bill No. 257 dated 26.10.2016 and the said tractor had some technical problems, initially which were removed/repaired by OP No.1, but tractor did not function as new one.  These technical problems had caused culmination of doubt in the mind of the complainant that the OP No. 1 had sold old tractor to him.  However, no report of any technical/ expert has been placed on record in this regard by the complainant.  The OP No. 2 is a financer, who has no direct role in selling the tractor in question to the complainant and technical problems/issues emerged subsequently and connivance of OP No. 2 with OP No. 1 is not established on record.  As regards the matter of post dated cheques reportedly deposited by the complainant with OPs, the same may be got cancelled by the complainant by requesting the concerned Bank.  Hence, there is no need to pass any direction against the OPs in this regard.  Now, limited scope of point of consideration before this Commission is to consider amount of relief to be given to the complainant for selling 9 months old tractor by OP No. 1.  The IRDA guidelines viz-a-viz terms of insurance stipulate age-wise rate of depreciation for the vehicle as under: -

          The Schedule of Depreciation for Fixing IDV of The Vehicle             

Age of The Vehicle	% of Depreciation For Fixing IDV of The Vehicle
Not exceeding 6 months	5%
Exceeding 6 months but not exceeding 1 year	15%
Exceeding 1 year but not exceeding 2 years	20%
Exceeding 2 years but not exceeding 3 years	30%
Exceeding 3 years but not exceeding 4 years	40%
Exceeding 4 years but not exceeding 5 years	50%

                   

          In the present complaint, the depreciation of tractor falls under 15% category of above table on the sale price of the tractor i.e. Rs. 4,68,000/-, which come to Rs. 70,200/-. 

7.                In the light of above mentioned facts and circumstances, we partly allow the present complaint against OP No. 1 and OP No. 1 is directed: -

i)        To release amount of Rs. 70,200/- (Seventy thousand two hundred only) being depreciated value of the tractor in question for 9 months alongwith interest @ 9% per annum from the date of purchase of tractor by the complainant i.e. 26.10.2016 till its realization.

ii)       To pay Rs. 5000/- (Five thousand only) as compensation on account of mental agony, physical harassment & hardship, due to deficiency in service & mal trade practice on the part of OP No. 1.

iii)                     To pay Rs. 5000/- (Five thousand only) as counsel fee as well as the litigation charges.

8.       The OP No. 1 shall make the compliance of the order within 45 days from the date of this, failing which the amount will attract interest @ 12% per annum, for the same period, till actual realization.  The copy of the order be supplied to the parties free of cost as per the rules. The Order be promptly uploaded on the website of this Commission. File be consigned to the record room, after due compliance.