Orissa

Kalahandi

CC/64/2017

Hari Harijan, aged about 32 years. - Complainant(s)

Versus

Rajesh Kumar Agrawal - Opp.Party(s)

Sri R.K Naik

01 May 2024

ORDER

JUDGMENT

Shri A.K.Patra,President

1. The captioned consumer complainant is filed by the   complainant named above inter alia alleging deficiency in service and unfair trade practice for misleading advertisement and for non delivery of registration, insurance & other papers relating to the purchased vehicle.
2. Complainant seeks for the following relief(s):- (i) order directing the OP No.1 to pay all the dues to Op No.3 on behalf of the complainant out of Rs. 8,03,500/- -(Rs 3,68,500/- + Rs.4,35,000/-) received by him and rest of the amount to be refunded to the Complainant and to deliver all the vehicular paper such as registration ,insurance, warranty & service book to the complainant, and to provide free service to the subject vehicle ,and to pay Rs.20,000/- as compensation towards mental agony ,Rs 20,000/- towards exemplary cost, Rs 50,000- towards mesne  profit, and to hold the Op 3 liable for accepting the finance of disabled person which is contrary to their own policy, and to direct the Op 2 to supervise the function of OP 1 and to restrain the Op 1 to promote unfair trade practice, and to award Rs 5,000/- towards cost of this litigation, and to direct the Op to pay interest @12% p.a from 10/11/2014 within specified period of time and falling which levy a default interest @ 18% p.a and to pass any other order as this Commission deems fit & proper in the interest of justice.
3. The facts of the complaint in brief is that,  the complainant wanted to purchase  one second hand tractor  but the  Opp.Party No.1/ Proprietor  R.K. Trader induced the complainant to purchase a new tractor for better outcome  by illustrating the printed broacher of Sonalika Tractors and offered 90,000/- discount  to trap the complainant to purchase the vehicle  from his show room and assured the complainant to arrange him a private finance and gave an estimate of Rs.3,05,000/- as down payment for finance.  The complainant being an innocent villager agreed to purchase the new vehicle for commercial purposes instead of second hand and paid Rs.3,68,000/-   to OP No.1 in the month of November, 2014. But the Op No.1 did not give any money receipt even after repeated demand by the complainant. After some days the OP No.1 delivered the vehicle i.e. on 10.11.2014.  At the time of delivery of the vehicle the OP 1 also promised to handover all the documents to the complainant within a month with hypothecation of private finance company. But after lapse of 3 years also no registration paper or insurance paper or any other document or service book or warranty manual were given to the complainant except a Challan dt.10.11.2014.  The complainant approached the Op No.1 several times to give all the documents so that, he can use the vehicle for commercial purpose which was the sole source of livelihood for the complainant at his disabled stage but the OP No.1 did not pay any heed . Since last three years the tractor is in standing condition in the house of the complainant without use. And in the due course of time the OP 3 repeatedly visited the complainant and collected Rs. 10,000/- on 22/07/2016, Rs.18,000/- & Rs.150/- on 16/03/2016 ,Rs.15,900/- on 09/06/2016 and Rs.25,000/- on 31/03/2017. It is further alleged when the Op3 demand repayment of loan the complainant for the first time came to know that ,  subject vehicle is financed by Op 3.The Op1 misrepresenting him as the authorised agent op the Op 3 has collected Rs.2,00,000/- on dt.05/10/2016 and Rs.2,35,000/- on dt.25/10/2016 and falsely assured to give free service to the subject vehicle so that the complainant could use it and his due will be cleared .But in spite of receiving of said amount the OP 1 never delivered the papers of the  subject  vehicle or have provided free service of the vehicle to get it running which caused heavy financial burden and loss of earning of livelihood of the complainant .It is alleged that, the OP1 has not only promote unfair trade practice for entrapping a helpless complainant to purchase the vehicle from him but not delivered money receipts even after receipt of Rs.3,68,500/- and demanding further due misrepresenting as the agent of OP3, so all so has render deficient service  in not delivering the vehicular papers such as registration certificate ,insurance ,documents of warranty, and service book to the complainant even after delivery of the vehicle .
4. The cause of action for this complaint arose on 10/11/2014 when the OP1 delivered the vehicle and subsequently on 05/10/2016 and on 25/10/2016 when the OP1 received Rs.4,35,000/-    misrepresenting himself to be the agent of Op 3 with a false promise that, he shall get his vehicle service & and he shall be provided all the vehicular documents with all the dues cleared. Hence, finding no other option the complainant filed this complainant.
5. The complainant ,to  substantiate his pleadings, has relied on & filed the following documents:_(i) Copy of disability Certificate,(ii) Estimate written in handwriting in plane paper,(iii) Copy of delivery challan,(iv)Money receipt- 7 Nos issued by the OP No.3, (v):Copy of Agreement,(vii)Copy of repayment schedule,(viii) Copy of award.The averment of complaint petition is supported by an affidavit of the complainant.
6. The Ops have appeared and filed their respective written version denying complainant   allegations.
7. The OP 1(one) submits that, the present complaint is baseless and flagrant abuse process of law to harass the OP 1. The OP 1 has never received any complaint from the complainant at any point of time to resort his problem earlier in this regard. The said vehicle was purchased by the complainant under a financial assistance of OP 3 in the month of November,2014 and the complaint is prefer after expire of statutory period of limitation prescribed under section  24 A of C.P.Act 1986  and that, the said tractor is purchased for commercial purpose and, hence the complainant cannot be term as Consumer of the Ops under C.P.Act. However, admitted the facts that, Op 1 is the authorize dealer of OP 2 and deals with new Sonalika tractor import from OP 2. The OP 1 never deals with re-build, second hand, renovated, reconditioned or old goods. Hence, there is no question of inducement of the complainant to purchase a new tractor. The complainant voluntarily comes to the show room of the OP 1 and expressed his desire to purchase one new Sonalika DI 740 tractor and trolley for commercial use. The total cost of the tractor is Rs.6,66,000/- including VAT tax. As the complainant was unable to pay the entire cost of the tractor, he availed a loan from Op 3 to purchase the tractor. During the month of January,2015  the complainant enter into a lawful contract  of Hypothecation with OP 3 and the OP 3 grant loan for an amount of Rs.4,25,000/-  in favour of the complainant under Kisan Gaurav  scheme. After receipt of Rs.6,66,000/-  in total including loan amount from OP 3, the OP 1 issued retail invoice bearing No.RKT/389 dt.28.01.2015  for an amount of Rs.6,66,000/-  in favour of the complainant. Except the aforesaid payment the OP 1 has never received any amount from the complainant. On dt.29.01.2015 the complainant deposited Rs.15,094/- as insurance premium of the Sonalika DI 740 tractor , year of Manufacture January,2015, insurance effect from dt.30.01.2015 to 29.01.2016. The complainant made periodical payment to the OP 3 in respect of his loan account. The complainant has never approached the OP 1 for registration and insurance of the vehicle nor made any payment in this regard. The complainant used the vehicle for commercial purpose and availed servicing of the said tractor during the year 2015 & 1016.It is further submitted by the OP 1 that, he/ OP 1  has never visited the house of the complainant and never approached  to pay loan amount .  The OP 1 never received Rs.2,00,000/- on dt.05.10.2016  and Rs.2,35,000/-  on dt.25.10.2016 from the complainant. The complainant prepares fictitious receipt of said date with a malicious motive rather the complainant has paid the EMI to the op 3 directly prior to the date mention in the said fictitious receipt and on receiving payments the OP 3 has issued receipt against such payments. The OP 1 has issued retail invoice in favour of the complainant, warranty card and service book on dt.28.01.2015 and that, the complainant availed periodical servicing of the vehicle. It is further submitted by the OP 1 that, the complainant has purchased the tractor in the month of January,2015 and in the present complaint is solely  based on financial aspect relating to OP 3. The complainant prefer this complaint in 13th September,2017 after lapse of more than two years. Hence, this complaint is barred by limitation prescribed under the C.P.Act. The OP1 never adopts Unfair Trade Practice in the present context. In order to avoid repayment of loan the complainant has filed this frivolous & vexatious complaint which is liable to be dismissed with cost.
8. The Op No.2 (two) submits that, he deals & appoints its dealers on principal basis. The tractors are sent to the dealers on payment basis when the order is received from the dealer. The OP No.2 never deals with any customer directly.There is no privity of contract in between the complainant and the Op No.2. The OP No.2 being manufacturer has no concern as to how & when a customer obtains finance facility.  The OP No.2 has no knowledge of any dealing in between the complainant & the OP No.1. The complaint is false and frivolous.Hence prayed to dismiss with cost. The Op 2 further submits that, the complaint is time barred as the tractor in question was purchased in the year 2014 and after gap of three years the complaint has been filed. The complaint is bad for mis-joinder of necessary parties and there is no cause of action against the OP No.2. The tractor purchased for commercial purpose to gain profits hence the complainant is not a consumer of the OPs as enumerated in the C.P.Act liable to be dismissed..
9. The OP No.3(three) submits that, the complainant  approached the Op No.3 for availing loan to finance a Sonalika  tractor and to which the Op No.3 agreed to finance  a sum of Rs.4,25,000/-. Accordingly loan- cum- hypothecation agreement was executed between the petitioner & opposite party vide Contract No.0KG760316R1500914056 and accordingly said loan was disbursed. In the said agreement it is categorically stated that, only the Courts at Mumbai alone shall have jurisdiction in respect of any dispute arising by the parties and hence the instant case is not maintainable before this Forum.  As per the agreement the petitioner had agreed to liquidate the entire loan amount of the vehicle in 48 monthly EMIs starting from 05.03.2015 and thereby ending on 05.02.2019 @ of Rs.12,480/- and  any delay or default in making payment  of any such instalments would attract over due  and such other charges  and the OP Company will be entitled to take the possession of the said vehicle as per right and remedies of the agreement. Due to default of instalment dues the OP  3 approached the complainant  through letters and personal contacts to pay the same but the complainant deliberately & intentionally  not paid the said dues. Finding no other alternative the Op No.3  referred the matter to the sole arbitrator  as per the arbitration clause of the agreement and the sole arbitrator  after following due procedure passed the award on dt.26.03.2014 under  Arbitration & Conciliation Act,1996. Since the award has already been passed, Consumer Forum has no power to decide this complaint petition as the decision of arbitrator is binding on the parties. Hence, prayed to dismiss the complaint with cost.
10. During hearing of this complainant as well the Op 1 filed their evidence on affidavit to prove their respective pleadings are taken in to consideration.
11. The  facts stated in the affidavit evidence  of the complainant is corroborating with the averment of complaint petition so also, the facts stated in the affidavit evidence of OP 1 is corroborating with the averment of their written version is taken in to consideration.
12. The OP 2 ,3 & 4 filed  no evidence affidavit as prescribed under C.P.Act 2019.
13. Heard the complainant and Ops present. Perused the material available on record .We have our thoughtful consideration of the pleadings and submissions of rival parties.
14. This commission has framed following issues for consideration:-

1. Whether the complainant is the consumer of Ops?
2. Whether this complainant is maintainable under C.P.Act?
3. Whether this complaint is barred by law of limitation?
4. Whether this forum has jurisdiction to entertain the petition?
5. Whether the complainant has taken the vehicle on loan through OP NO.1 or directly through OP No.3 ?
6. Whether there is deficiency on the part of the Ops ?
7. Whether the complainant is entitle to any relief and if so from whom and to what extent ?

15. Preliminarily the OP 1 has raised objection on the maintainability of this complaint as the complainant has purchased the alleged vehicle for the commercial purpose accordingly he is not a consumer as defined under C.P.Act and that, the complaint is barred by limitation as prescribed under C.P. Act.So also the complaint is not maintainable for non joinder & mis-joinder of  necessary party. It is found that, the complainant has pleaded & proved on affidavit that, being he is a handicapped person the subject vehicle is purchased to use as commercial purpose to earned his livelihood remain un-rebutted and nothing cogent evidence contrary is produce to disbelieved the same. Nothing placed on record that, subject is purchased for resale or to run any huge establishment with many other vehicle/machine possessed by the complainant   for earning huge benefits as such the submission of the Op 1( one) that, the vehicle is purchased for commercial purpose debarred the complainant to approached this Forum/Commission is hereby rejected . Issue no. i & ii is answered accordingly.
16.  Admittedly, the complainant has obtained the tractor Sonalika International  Tractor Model No.DI940 which was handed over to him by OP No.1 vide delivery Challan No.RKT 60 dt.10.11.14 bearing Engine No.F86857 chassis No.JSASE9455783. This delivery Challan does not bear the name of financer or with whom it is hypothecated.
17. The written version and the documents filed by the OP NO.2 reveals that, the complainant has directly approached him for loan and the sum was granted  on the strength of an hypothecation agreement  dt.28.01.2015 and the instalment start from 5.03.15 to 5.2.19 with a monthly instalment of Rs.12,480/-. The contention of comp-laint petition that  cause of action for this complaint arose on 10/11/2014 when the OP1 delivered the vehicle and subsequently on 05/10/2016 and on 25/10/2016 when the OP1 received Rs.4,35,000/-    misrepresenting himself to be the agent of Op 3 with a false promise that, he shall get his vehicle service & and he shall be provided all the vehicular documents with all the dues cleared is proved on affidavit of the complainant remain un rebutted. Since the loan repayment is to be paid till 2019 the complainant petition has been filed in time. .Issued no. iii is answered accordingly in favour the complainant.
18. So far the Issue No. iv regarding jurisdiction of this forum/ Commission to entertain the petition the complainant and OP No.1  who delivered the tractor reside within the local jurisdiction of this forum and the OP NO.2 & 3 are carrying  on business in the local jurisdiction of this forum through their agent and branches and hence this forum/Commission  has the jurisdiction to entertain the petition.
19. So far as Issue No.v from whom the complainant has taken loan, the petition and documents filed by the parties are to be considered. As per the complainant the complainant who is physically challenged person come with the father and approached the Op NO.1 who is dealing with Sonalika Tractor for a second hand tractor for his livelihood but the complainant was convinced by him to purchase a new Sonalika  Tractor. The  OP No.1 prepared a hand written estimate wherein the total cost of tractor including registration  and insurance comes to Rs.8,74,500/- and after allowing discount of Rs.90,000/- the cost  will come to Rs.7,84,500/-. The OP 1 also assured the complainant to arrange a private financer. Being persuaded by the OP No.1 the complainant deposited Rs.3,68,500/- in instalment basis during November,2014 but the OP did not issue any money receipt in this respect but after about a week of receiving the above amount  he handed over the tractor and  informed him that, he will arrange a  financer and will hand over all the documents of the tractor. But it is alleged that, till date no document had been handed over to him for which the tractor is kept with him in a idle condition in spite repeated request of the complainant.
20. It is further alleged  by the complainant that the Op No.3 claiming himself as the financer  visited  him several times and demanded money towards instalment and the complainant being forced by OP No.3 had paid Rs.10,000/- on 2.07.16,Rs.18,000/- and 1501/- on 16.03.16,Rs.15,900/-  on 09.06.16, Rs.25,000/- on 31.03.2017. The complainant has filed money receipt in respect of the above payment. To aid to the agony of the complainant when he reported regarding the demand of OP No.3, the OP No.1 directed him not to pay any amount to the OP No.3 and demanded remaining dues to clear the loan and handover the document and took Rs.2,00,000/-(Rupees two lakhs) on 5.10.16  and Rs.3,50,000/-(Rupees three lakhs fifty thousand) only on 25.10.16   and issued money receipt of the same.  When the OP No.3 visited his house and collected instalment, the complainant could know that the vehicle was hypothecated to the OP No.3.
21. On the other hand the Op No.3 contended that, the complainant  approached the Op No.3 to finance Sonalika DI 740  and the OP sanction finance of Rs.4,25,000/-  after execution of  vehicle loan cum hypothecation agreement. According to the agreement the parties agreed to liquidate the entire loan amount in 48 instalments starting from 5.3.2015 ending 5.2.2019 @ Rs.12,480/- per month. The Ops further contended that, as the complainant did not pay the instalment in time referred the matter to the Sole Arbitrator Mr. Nitin Chavan  and after following due procedure the  Arbitrator passed the award on 26.03.14 under Arbitration and Conciliation Act,1996. The Op No.3 has filed the copy of hypothecation agreement and from the hypothecation agreement it is seen that it   only contain the signature of the complainant and authorised signature of Op No.3.  Signature of the complainant is also doubtful not proved to be genuine. Neither any date has been reflected nor has any co-hirer or guarantor signed the same. The Op has filed a copy of annexure to the loan agreement which is dated 28.01.2015 and according to the schedule the  total cost of the tractor is Rs.6,66,000/-, margin money RS.2,41,000/- and  loan amount Rs.4,25,000/-. The OP No.3 is completely silent by  whom the margin money has been deposited and as to  how the OP No.3 has  sanction loan  of Rs.4,25,000/-  only to a handicapped person  as averred by him without any guarantor a co-borrower  to secure  the loan. The Op No.3 is also silent about the M.V. document and insurance.
22. From the document filed by both the complainant and Ops it is clear that OP NO.1 and 3 had   manipulated the entire loan procedure and extracted money from the innocent handicapt complainant and till date no document what so over enables the complainant to use the vehicle had been handed over to the complainant which amounts to deficiency of service and unfair trade practice adopted by them.  If according to OP NO.3 the complainant directly took loan of Rs.4,25,000/- from him on the strength of hypothecation agreement on 28.01.2015 as to how the OP NO.1 handed over the tractor bearing the same engine  and Chassis number to the complainant on 10.11.14 vide   Challan No.RKT  dt.10.11.14 which is  prior to granting loan  to the complainant and hypothecation agreement  filed  by OP No.3.  The Op No.3 claims to be  the financer and  contended that,  he directly financed the complainant but  completely silent about the  margin money and also whether he handed over the  finance amount  by cash or by cheque and whether he handed over the finance amount to the complainant or any  dealer of the tractor. In the entire written version the OP No.3 no where it has been mentioned who delivered the tractor to the complainant.  The OP has also not filed the original   loan application of the complainant. It is set principle for the financer while granting loan is that, only after receiving the marginal money and   quotation from the supplier from the loanee to release cheque for the loan amount to the supplier. But all these facts are kept in dark by the OP No.1 & 3. So there is no transparency regarding the manner of regarding   granting of loan by OP No.3.Issue no.vi answered accordingly.
23. It is established by the documents filed by the complainant that, he has paid Rs.3,68,500/- after which the OP  NO.1 handed over the tractor along with a delivery challan.  Though there is no money receipt of these amount the fact that, the tractor had been handed over by the OP established the same. He  had also  paid some amount as discussed above  to OP NO.3 as per money receipts and  further Rs.2,00,000/-  and Rs.2,35,000/- to OP No.1. But in spite of the same the OP No.1 except the delivery Challan had not handed over the sale letter  and other M.V. document required for registration nor took any step for getting the vehicle insured and registered  from the competent authority for which till date the vehicle remain unregistered and not road worthy. The OP No.3 who claims to have granted finance never from his side made any attempt to see that, the vehicle is registered as per M.V.Act and got the same hypothecated in those documents.   
24. So till date the complainant is not the registered owner and could not use the vehicle. The submission of the learned counsel for the Op 1(one) that, the Op 1 has already deposited the registration fee before the concern authority but due to non production of subject by the complainant before the RTO for verification the vehicle could not be registered is beyond pleadings is not accepted .Law is well settled that, submission beyond pleading shall not construe evidence and it should not be accepted .So also any documents filed by the Op1 as per list of documents dt. 06/12/2023 after concluding evidence without serving copies of the same to the complainant cannot acceptable rather those are discarded.
25. It is found that, OP No.1 in connivance with OP No.3 had managed the loan transaction. So in our opinion OP No.1 & 3 are squarely deficient in service   and had adopted unfair trade practice   who hoodwinked an innocent physically challenged person. The Op No.3 had filed an order  of Learned Sole  Arbitrator which shall no barred to decide whether there any deficient service & unfair trade practice on the part of the Ops and it is left open the OP No.3 to execute them.  The OP NO.3 is to bear in mind that, the complainant is not registered owner of the vehicle till date. In the written version of the OP No.3 it is mentioned  in Para 9  the Learned  Sole Arbitrator Mr.Nitin Chavan  has passed the award on 26.03.14  but from the copy of the award  reveals that, it is  passed on 25.05.2017. The date of award as mentioned in the written version is much prior to granting loan. Further the OP had collected instalments during alleged pending of Arbitration proved unfair trade practice. Issued no. vii is answered accordingly.
26. As discussed above this commission is of the opinion that, due to the deficiency of service and unfair trade practice on the part of the OP No.1 and 3 the complainant had parted with a huge amount without being able to use the tractor which was handed over by OP NO.1  is of no use to him without registration as per M.V.Act. So in our opinion he is entitle to get back the amount he has paid to the OP No.1 & 2.
27. It is proved that, the complainant has suffered injuries due to deficient service and unfair trade practice there on the part of the OPs as such there is sufficient cause to present this complaint. Hence this complaint is allowed in part against the OPs on contest with following orders:-.

 

 

 

ORDER

The OP No.1 (one)  is directed to refund the amount taken  by him from the complainant i.e. Rs.8,03,500/- with interest @12% p.a from the date of filling of this complaint i.e from 13/09/2017 to the complainant and after seven days of  receipt of the same the complainant shall hand over the subject vehicle to the OP No.1 (one) and the OP No.3 shall refund which he has taken from the complainant i.e. Rs.69,050/-with interest @ 12 % p.a from the date of filling of this complaint i.e from 13/09/2017. Further the OP 1& 3 are directed pay Rs 10,000/- each towards cost of this litigation to the complainant .Since this commission has awarded interest over the awarded amount there shall be no order towards mental agony as claimed by the complainant.  There shall be no order against the OP No.2(two) The Ops are directed to comply this order within 30 days of receipt  of the order failing which  necessary order u/s 72 0f C.P Act  will follow.                                                                                 

 Dictated and corrected by me.

            President.

                                    I   agree

                                                 Member

                 Pronounced in the open Commission today on this  1^st May 2024 under the seal and signature of this Commission. Pending application if any is also stands disposed off.

                 Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to them .The judgment be uploaded forth with on the website of the Commission for the perusal of the parties.