Consumer Complaint No. 52 of 2013
Date of filing: 13.03.2013 Date of disposal: 30.01.2017.
Present :
Sri Asoke Kr. Mandal Hon’ble President,
Smt. Silpi Majumder Hon’ble Member,
Sri Pankaj Kr. Sinha Hon’ble Member,
Prasanta Mondal & Others,
S/O Laxmi Narayan Mondal,
Vill. Kantar P.O. & P.S. Bhatar,
Burdwan. Pin- 713125. Complainant.
VERSUS
- M/S Poddar Tractors,
No. Parcus Road, P.O, P.S. & Dist. Burdwan- 713101,
Represented by its Proprietor.
- New Holland Flat (India) Pvt. Ltd. - Manufacturer Company
Industrial Plot No. 3, Udyog Kendra, Greater Noida,
P.S. Goutam Budh Nagar Uttar Pradesh- 201303,
Represented by its ‘ Managing Director.
- Salim Khan, S/O Ahamed Ali Khan,
Salesman of the Company,
Vill. Tulla, P.O. Paschim Kharampur,
P.S. Monteswar, Dist. Burdwan- 713125.
4. Susanta Mondal, S/O Laxmi Narayan Mondal,
Vill. Kantar P.O. & P.S. Bhatar,
Burdwan. Pin- 713125.
- Jayanta Mondal, S/O Laxmi Narayan Mondal,
Vill. Kantar P.O. & P.S. Bhatar,
Burdwan. Pin- 713125. Principal Opposite Parties.
The Buedwan Central Co-Operative bank Ltd.
through Kantar SKUS Ltd. of Bhatar Branch,
P.O. & Dist. Burdwan 713125. Pro forma Opposite Parties.
Appeared for the complainant : Ld. Advocate Mrinal Kanti Kesh.
Appeared for the O. P. No. 1 : Ld. Advocate Debjyoti Banerjee.
Appeared for the O. P. No. 2 : Ld. Advocate Ashish Banerjee.
Appeared for the O. P. No. 3 : None.
Appeared for the O. P. Nos.4&5: Ld. Advocate Debdas Rudra.
Appeared for the Profrma O. P. : None.
JUDGMENT
This is a case U/s. 12 of the C.P. Act for an award directing the O.Ps. to replace the old tractor by new one of same model being named and style ‘NEW HOLLAND’, to pay Rs. 5,000/- as litigation cost, to pay Rs. 20,000/- as compensation for harassment, mental agony and loss meted out by them and to pay Rs. 3,00,000/- as compensation for unfair trade practice to the complainant.
The complainant’s case in short is that the complainant purchased the tractor with details NEW HOLLAND Tractor Model- 4510, HP 42, Cyl 03, Engine No. D- 19898, Chassis No. 3177394 on 07.05.2012 by paying cash Rs. 1,20,200/- as part payment and by paying Rs. 3,60,600/- as rest value of said tractor on bank loan taken from Bhatar Branch of ‘The Burdwan Central Co-operative Bank Ltd.’ through Kantar SKUS Ltd. to the O.P. No. 1. The O.P. No. 1 issued Tax Invoice No. (Blank)/12-13 with copies of Quotation, Sanction letter of Loan, Installment payment of loan, Sale certificate & Delivery Challan. The O.P. No. 2 is the manufacturer and O.P. No. 3 is the Salesman of said tractor. The O.P. No. 3 knowing fully well, provoked the complainant to purchase said defective and second hand tractor. The Tax Invoice issued by the O.P. No. 1 is without serial number & Vat number. The O.P. No. 1 collected near about 4% amounting to Rs. 18492.31 without specifying the details of expenses. Within 15 days from the date of purchase, several defects in said tractor were detected and ultimately the tractor became totally inoperative. The complainant on several times visited the office of the O.P. No. 1 and requested to make the tractor in order but the O.P. No. 1 did not do so telling that there are manufacturing defects in the tractor which are not repairable and beyond their control. The tractor was sold first to one Aroz Ali Mondal who operated the tractor more than 300 hours and detecting several defects returned the same to the O.P. No. 1. Then the O.P. No. 1 in connivance with the O.P. No. 3 and with ill motive sold said tractor to the complainant for the second time. The complainant several times requested the O.P. Nos. 1 &2 to replace the tractor in question by new one of same model being named and style ‘NEW HOLLAND’ and lastly by sending legal notice dt. 28.01.2013, the complainant requested the O.P. Nos. 1 & 2 to replace the tractor in question by new one but said O.Ps. did not pay any heed. Due to deficiency in service and unfair trade practice on the part of the O.P. Nos. 1, 2 & 3, the complainant being a poor cultivator in in their locality, has been suffering from mental pain, agony and harassment and has been forced to come before this Forum. So the complainant is entitled to get an award as mentioned above.
In spite of service of notices of this case upon the O.P. No. 3 and pro forma O.P. (the Burdwan Central Co-Operative Bank Ltd.), they did not appear and contest this case. Accordingly this case was heard ex-parte against the O.P. No. 3 and the proforma O.P.
The O.P. No. 1 contested this case by filing written version while stating inter-alia that the case is not maintainable against this O.P., the complainant has no cause of action to file this case and the complainant is not a consumer as he availed the tractor commercially. It has been further stated by this O.P. that the bills printed in triplicate and are contained in a bound bunch of 50 or 100 serials, the bill issued to the complainant and the complainant’s financier is part of such a bill book, said bill book contains altogether 11 numbers of transactions including that of the complainant which appears at the serial number 6, when a sale is effected with the help of a financier the duplicate bill is given to the purchaser and the triplicate is retained by this O.P., as the transaction of the complainant was bank financed, the original bill was given to the O.P. Bank and the duplicate bill was given to the complainant, all the bills contained serial numbers, the business of this O.P. is stopped since June 2012, the printer of said bill book by mistake did not put the VAT number, in the instant case the original bill was written and handed over to the bank authority in the bank itself, the stamp of VAT number was not carried, therefore the bills which were teared at bank, did not contain the VAT number, the statement of payment of VAT submitted by this O.P. in the Sale Tax Department, will be the evidence to show that this O.P. paid the VAT for the sale of tractor also, where the purchaser is a duly registered entity, the VAT is adjusted in the TIN of such purchaser, so far as the individual entry may not be identified but a total calculation will go to show that the VAT was paid, old vehicle was not sold to the complainant but it may be that due to some clerical error on the part of the then employees erasing and over writing in the Warrantee Card and Warrantee Booklet were made and such erasing and over writing in the Warrantee Card and Warrantee Booklet shall not prove that a second hand vehicle was sold to the complainant, all the connected documents like insurance, registration etc. clearly it appears that the transaction with the complainant was a first hand transaction, before the purchase the complainant visited the office of this O.P. No. 1 on several occasions to verify everything and being satisfied he purchased the tractor, before making this complaint, the complainant used the vehicle for more than nine months, the complainant had got service of the tractor from the dealers of Memari and Burdwan, at that time the complainant did not raised any allegation about alleged second sale and defect in vehicle, the complainant after enjoying the benefit of the vehicle, has taken a chance to get illegal benefit and accordingly the case is liable to be dismissed with cost.
The O.P. No. 2 contested this case by filing separate W.V. while stating inter alia that the case is not maintainable against this O.P., the complainant has no cause of action to file this case and the complainant is not a consumer as he purchased the tractor for commercial purposes and availed the tractor commercially. It has been further stated by this O.P. that the tractor in question is capable of tilling large areas of land in a smaller time, unless one has very large land, holding the tractor is not supposed to be purchased only for own consumption, the complainant has not stated that he has large area of land moreover he has stated that he is a poor cultivator, this O.P. is no doubt the manufacturer of the tractor, it being a reputed Multinational Company has a strong good-will and this O.P. has no mechanism for promoting its product by any so called sales man, this O.P. never sold any second hand tractor and it has no scheme to buy back tractor once sold in the market, this O.P. being a reputed Multinational Company follows a series of tests before releasing a product in the market, so there is no possibility of inherent defect in the tractor, the tractor in question was not sold to Aroz Ali Mondal for the first time and as this O.P. has on branch or office within the territorial jurisdiction of this Forum, this Forum has no jurisdiction to try this case. It is therefore claimed by this O.P. that the case is liable to be dismissed against this O.P.
The O.P. Nos. 4 & 5 also contested this case by filing their W.V. while stating inter alia that these O.Ps. are poor cultivators in in their locality, the complainant and these O.Ps. jointly purchased the tractor with details NEW HOLLAND Tractor Model- 4510, HP 42, Cyl 03, Engine No. D- 19898, Chassis No. 3177394 on 07.05.2012 by paying cash Rs. 1,20,200/- as part payment and by paying Rs. 3,60,600/- as rest value of the tractor on bank loan taken from Bhatar Branch of ‘The Burdwan Central Co-operative Bank Ltd.’ through Kantar SKUS Ltd. to the O.P. No. 1. and the O.P. No. 1 issued Tax Invoice No. (Blank)/12-13 with copies of other some documents and admitting all the allegations brought by the complainant against the O.P. Nos. 1 to 3. These O.Ps. have further stated that they jointly with the complainant served legal notice upon the O.P. Nos. 1 & 2 and requested the O.P. No. 1 repeatedly to replace the tractor by new one of same model being named and style ‘NEW HOLLAND Tractor Model- 4510’
.
DECISION WITH REASONS
In support of his case the complainant has relied upon the photo copies of several documents like photo copies of Tax Invoice No. (Blank)/12-13, Quotation, Sanction letter showing sanction of Loan, Sale certificate, Delivery Challan, Receipt showing payment of Rs. 1,72,000/- as Installment of loan to the Kantar SKUS Ltd., Legal Notice, and Receipts showing payment of Insurance premium. The complainant has also relied upon the original Certificate of Registration related to the tractor in question, Warranty Booklet issued to the complainant & others, Independent Expert’s Report submitted on 19.08.2014 and Reply of questionnaires made by the Expert appointed by this Forum.
The contesting O.P. Nos. 1 & 2 have adduced no evidence. The O.P. Nos. 4 & 5 submitted their evidence on affidavit supporting their own case that they are poor cultivators in their locality, the complainant and they jointly purchased the tractor with details NEW HOLLAND Tractor Model- 4510, HP 42, Cyl 03, Engine No. D- 19898, Chassis No. 3177394 on 07.05.2012 by paying cash Rs. 1,20,200/- as part payment and by paying Rs. 3,60,600/- as rest value of the tractor on bank loan taken from Bhatar Branch of ‘The Burdwan Central Co-Operative Bank Ltd.’ through Kantar SKUS Ltd. to the O.P. No. 1 and supporting the rest case of the complainant as made out in the complaint.
So considering the cases brought by the contesting parties and materials on record, we find that several issues like whether this Forum has any jurisdiction to try this case, whether the complainant and O.P. Nos. 4 & 5 are consumers, whether there are deficiency in service and unfair trade practice on the part of the O.P. Nos. 1,2&3, whether the O.P. Nos. 1&2 have any liability to replace the tractor in question by a new one of same model being named and style ‘NEW HOLLAND Tractor Model- 4510’ and whether the O.P. Nos. 1,2&3 have any liability to pay any compensation and litigation cost to the complainant, are pending for decision. Before the consideration of other issues, it is essential to decide the issues that whether this Forum has any jurisdiction to try this case and whether the complainant and O.P. Nos. 4 & 5 are consumers of the O.P. Nos. 1,2&3. So we are taking these two issues for decision first.
From the materials on record it appears that all the contesting parties have admitted that the complainant with the O.P. Nos. 4 & 5 jointly purchased the tractor with details NEW HOLLAND Tractor Model- 4510, HP 42, Cyl 03, Engine No. D- 19898, Chassis No. 3177394 on 07.05.2012 by paying cash Rs. 1,20,200/- as part payment and by paying Rs. 3,60,600/- as rest value of the tractor on bank loan taken from Bhatar Branch of ‘The Burdwan Central Co-operative Bank Ltd.’ through Kantar SKUS Ltd. to the O.P. No. 1. and the O.P. No. 1 issued Tax Invoice and other related documents in favour of the complainant and others. It is also admitted that said tractor was registered on 27.06.2012 having Registration No. WB41F9469 valid upto 26.06.2014 in the names of the complainant & others and said tractor was insured with the Oriental Insurance Company Ltd. The photo copy of receipt showing payment of Rs. 1,72,000/- as installment of loan to the Kantar SKUS Ltd. supports that the complainant with O.P. Nos. 4&5 jointly purchased the tractor.
The contesting O.P. Nos. 1 & 2 have brought a specific case that the complainant is not a consumer as he purchased the tractor for commercial purposes and availed the same commercially. The O.P. No. 2 has stated further stated that the tractor in question is capable of tilling large areas of land in a smaller time, unless one has very large area of land, holding the tractor is not supposed to be purchased only for own consumption, the complainant has not stated that he has large areas of land moreover he has stated that he is a poor cultivator.
On perusing the pleadings it appears that in the complaint the complainant has not stated that he has very large areas of land for cultivation and the O.P. Nos. 4&5 have also not states in their W.V. that they have very large areas of land for cultivation moreover the complainant in complaint and the O.P. Nos. 4&5 in their W.V. have admitted that they are poor cultivators in their locality. Nodoubt the tractor in question is capable of tilling large areas of land in a smaller time. So it is very difficult to believe that the holding of the tractor in question by the complainant with O.P. Nos. 4&5, is supposed to be purchased only for their own consumption. The original Certificate of Registration related to the tractor in question has been submitted in this case. This Certificate shows that the Class of Vehicle is TRACTOR (COMMERCIAL). This certificate is sufficient to prove that the tractor in question was registered as commercial vehicle and the complainant & others purchased the tractor in question for commercial purposes and availed the same commercially. Section 2(d) provides, “Consumer means any person who- buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose or ……………………”. In this Section “commercial purpose” has been explained for the purpose of this clause as- ‘commercial purpose’ does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment. In any corner of the complaint and W.V. filed by the O.P. Nos. 4&5, it has not been mentioned that the complainant and others purchased the tractor in question, exclusively for the purpose of earning their livelihood by means of self-employment. In view of our above discussions we are of the opinion that the complainant & others purchased the tractor in question for commercial purposes and availed the same commercially and accordingly the complainant, O.P. No. 4 & O.P. No. 5 are not the consumers and this Forum has no jurisdiction to try this case.
As it has been decided that the complainant is not the consumer and this Forum has no jurisdiction to try this case, this Forum is not entitled to decide the other issues involved in this case.
In view of our above discussions, the case fails.
Fees paid is correct. Hence, it is
Ordered
that complaint being No. 52/2013 is dismissed on contest against the O.P. Nos. 1,2,4& 5 and ex-parte against the rest without cost.
Let the copies of this order be supplied to the parties free of cost.
(Asoke Kr. Mandal)
Dictated and corrected by me. President,
D.C.D.R.F., Burdwan
(Asoke Kr. Mandal)
President
D.C.D.R.F., Burdwan
(Silpi Majumder) (Sri Pankaj Kr. Sinha)
Member Member
D.C.D.R.F., Burdwan D.C.D.R.F., Burdwan
