Complaint Case No. CC/17/2020 | ( Date of Filing : 24 Feb 2020 ) |
| | 1. Mahendra Tandi, aged about 49 years. | S/o- Late Jayasing Tandi R/o-Vill Bhalubutra, Po-Arebeda Ps- Jaipatna,Dist-Kalahandi |
| ...........Complainant(s) | |
Versus | 1. Prop M/S Prasiddh Agro Sales & Service Paradeswar Mandir Road | Paradeswar Mandir Road, Dharmagarh Po/Ps-Dharmagarh,Dist-Kalahandi | 2. 2. The Director Preet Group of Companies | PO Box No. 29, Nabha-Patiala Road,Nabha, Dist-Patlia, Punjab , India | 3. President, Prathamika Krushi Samabaya Samiti | At/Po-Mandal, Ps-Jaipatna, Dist-Kalahandi,Odisha. |
| ............Opp.Party(s) |
|
|
Final Order / Judgement | JUDGMENT Sri. A.K.Patra .President. - This consumer complaint is filed by the complainant named above inter alia alleging manufacturing defect there with the vehicle purchased from the Op 1(one) and further alleged negligence & deficiency in providing proper service on the part of the Ops which causing financial loss & mental agony to the complainant.
- The complainant seeks for an order directing the OP 1(one) to return back all the expenses paid and to replace the subject defective vehicle/Tractor sold to the complainant with new one of same model and the total numbers of loan installment due against the complainant be levied upon the OP No. 1(one) as due to sole negligence of Op 1(one) the complainant sustained heavy loss and for an order directing the Op 3(three) to stay of the repayment of loan installment due as on date pending disposal of this complaint and further prayed to pass any other just & proper order rendering justice to the complainant.
- The facts of the complaint in brief is that, the complainant has purchased a vehicle /Tractor vide model No 4549/4WD/AVO1B/DC/PS, Engine No.245-07944, Chassis NO. BCW45AGO4549/B for an amount of Rs.7,99,000/-from the OP 1(one) paying down payment of Rs.1,75,000/- and the rest amount of Rs.6,20,000/- is being financed by OP 3(three). The EMI for repayment of loan to the OP 3(three) is fixed @ Rs. 31,000/-. Accordingly loan installment is paid on 30.03.2019 ,30.06.2019 and 29.09.2019 respectively. It is alleged that, soon after the delivery of the said tractor it found so many fault in radiator & self start motor. It is further alleged that , since 28.01.2019 till date of filing of this complaint the vehicle suffered 12 Nos. of break down due to radiator problem, self motor problem ,had gasket problem, hydraulic problem, release bearing and clutch house problem, wheel pinion & break system problem resulting non functioning of tractor leading to heavy loss and mental agony to the complainant for which the complainant could not carry out his farming activity and was not able to repay the installments to the financer .Accordingly requested the OP 1(one) for proper repairing of the said vehicle/tractor but the OP 1(one) was always neglecting to repair the vehicle and failed to provide proper service for which the complainant sustained heavy loss and mental agony could not able to repay the loan to the OP 3(three) and that, due to such intentional negligence & delay in providing service and for non cooperation of OP 1(one) the complainant unable to run the vehicle suffered financial loss & mental agony. Hence, this complaint with the prayer for an order as stated above.
- On being notice the Op 3 (three) appeared in person and filed their written version admitting the fact that, a medium term agricultural loan was sanctioned by the Bhawanipatna Co-operative Ltd. to Mandal Primary Agriculture Co-operative Society Ltd. for extending the loan to the complainant to acquire a tractor vide letter NO.3067 dt.18.12.2018 and accordingly the loan amount of Rs.6,20,000/- was disbursed to the complainant. It is further admitted that, the complainant has deposited three numbers of installments in the branch of BCCB at Kalampur. It is further contended that, there is no provision in term & condition between the PACS and the complainant that the tractor will be replaced if it is found defective and that, the choice of brand and dealer for acquiring a tractor is exclusively of the complainant and there was no role of the PACS. In case of failure to repay the loan in time the complainant will be declared defaulter and a penal interest will be charged on the unpaid loan and the answering OP 3(three) is not in a position to allow stay of the repayment of installments payable by the complainant rather the complainant is duty bound to pay the entire loan with accrued interest.
- The OP 2(two) appeared but failed to file their written version on stipulated period of time as prescribed under C.P.Act . The written version filed in a belated stage is not accepted in view of judgement and order passed by the Hon’ble Supreme Court of India in New India Assurance Co.ltd vrs Hilly Multi Purposes Cold Storage Ltd.). The evidence affidavit filed by the OP 2(two) without pleading earned no evidential value for consideration.
- The Op 1(one) appeared but no written version is filed as such the evidence of OP 1(one) filed in shape of affidavit has not taken into consideration.Law is well settled that, evidence without pleading has got no implication.
- Heard the Parties, we have our thoughtful consideration on the submission of Ld. Counsel of rival parties and carefully perused the material available on record.
- Section 38(6) of C.P.Act,2019 casts an obligation on the District Commission to decide a complaint on the basis of evidence brought to its notice by the complainant and service provider/seller irrespective of whether the service provider/seller adduced evidence or not the decision of District Commission has to be based on evidence relief upon by the complainant. Thus the onus is there on the complainant making allegation.
- The complainant to substantiate his claim has filed his evidence on affidavit, the averment of which are corroborating with the averments of the complainant petition. However, the photo copies of the documents filed by the complainant are in no way authenticated to be true as such this commission is unable to trust on such documents.
- We have gone thoroughly to the judgments as cited by Ld. Counsel for the Ops and have our thoughtful consideration over the documents filed by the Ops which are certified to be true and gone through the notes of argument placed in the record.
- Law is well settled that, onus lies on the complainant to prove by cogent and adequate evidence supported by expert opinion that, the vehicle suffered from inherent manufacturing defect and unless that onus is satisfactorily discharged, liability of manufacturer could be limited only to the removal of defects only by replacement of part.
- Since, admittedly there is no expert evidence produced by the complainant before this Commission who also failed to undertake exercise of asking for expert opinion as required of it by law. As such we are unable to hold that the vehicle suffered from inherent manufacturing defect liable to be replaced with a new one or else complainant is entitle for refund of the price of the vehicle.
- It is not in dispute that, the complainant has availed a medium term agricultural loan amount of Rs.6,20,000/- for purchasing of the subject vehicle/tractor from Op 3(three) . It is further not disputed that, the complainant has deposited only three numbers of installments towards repayment of said the loan. The contention of the Op 3(three) that, there is no provision in term & condition between the PACS/OP 3(three) and complainant that, the tractor will be replaced if it is found defective remain unchallenged .It is also remain unchallenged that , the choice of brand & dealer for acquiring the subject vehicle/Tractor is exclusively of the complainant and there was no role of the PACS/Op 3(three) for purchasing of the subject vehicle . Further the contention of the Op 3(three) that, in case of failure to repay the loan in time the complainant will be declared defaulter and a penal interest will be charged on the unpaid loan remains un challenged .As such this commission is of the opinion that, the complainant is not entitled to get any exemption from repayment of loan with accrued interest to the Op 3 (three) rather, complainant is duty bound to repay the entire loan with accrued interest to the Op 3(three). Accordingly prayer of the complainant for stay of the repayment of loan installments to the Op 3(three) is not acceptable.
- Based on above facts & circumstances and settled principle of law, we are of the opinion that, this complaint sans merits. Hence, it is order.
ORDER This complaint is dismissed against the OPs on contest. However, no order as to cost. Pending application if any is also stands disposed off accordingly. Dictated and corrected by me. Sd/- President I agree. Sd/- Member Pronounce in open forum today on this 28th February 2024 under the seal and signature of this Commission. Free copy of this order be supplied to the respective parties or they may download the same from the Confonet to treat the same as copy of the order receipt from this Commission. Order accordingly. | |