The case of the complainant, in a nutshell, is that the complainant is a poor and rustic cultivator who earns his livelihood by way of cultivation. The O.P No. 1 is an authorized agent of Mahindra having Code No. KOLBIROI for servicing and repairing the Mahindra Tractor. The complainant on being attracted by lucrative advertisement made contract with O.P No. 1 for purchasing a tractor and the said O.P No. 1 offered him one Mahindra Tractor with warranty and service facilities being financed by O.P No. 3. The complainant accepted the offer of O.P No. 3 and entered into an agreement bearing No. 330557 dated 28/08/2014 wherein after initial payment made by complainant and the rest amount of Rs. 450000/- was financed by O.P No. 3 for 48 installments/EMIs.
Thereafter the complainant cleared up his first 13 installments upto August, 2015 @ Rs. 13,590/- Per Month. In the mean time the Hydraulic of the said ‘Mahindra Tractor 475 DI B’ started malfunctioning and the complainant brought the said tractor to O.P No. 1, the authorized agent of Mahindra for repairing and the O.P No. 1 kept the said product with them by issuing a Job card being No. 133 dated 16/10/2015 and told the complainant to come after 15 days. The complainant visited on scheduled date of delivery for his tractor but the O.P.No.1 and 2 did not repair and hand over the same to him. The complainant did not continue his EMI of Rs.13, 590/- per month due to the fault of O.P.No.1 but keeping all the ethics behind the O.P. No.3 who is a part of the Mahindra conglomerate on 03/08/2016 have recalled the loan and issued an unjustifiable notice demanding some over-calculated and imaginary amount of Rs. 4,27, 844/- from the complainant and the complainant replied to the same on 30/08/2016 through his Lawyer stating all the facts but the O.P did not reply the same.
The further case of the complainant is that at time of issuing the loan the O.P. No. 3 has inserted one arbitration clause without the knowledge of the complainant and going step beyond they issued notice for arbitration to be taken place at New Delhi. Due to the unethical, whimsical and negligent act of the agent of O.P. No. 2 & 3 and illegal trade practice of the O.Ps, the complainant has suffered huge financial loss and mental agony. The cause of action arose when the complainant entered into an agreement with O.P. No. 3 on 28/08/2014 and purchased the said tractor and thereafter when the hydraulics started dis-functioning on 16/10/2015 when O.P. No. 1 received the tractor for repairing on 03/08/2016.
Hence, this case filed by the complainant with a prayer for direction upon the O.Ps either to repair the hydraulic of the tractor in proper functioning condition or to replace it or to return the amount deposited as initial payment and EMIs to the complainant and also prayed for direction upon the O.Ps to pay Rs. 2, 50,000/- towards mental agony & sufferings and also prayed for direction upon the O.Ps to pay Rs. 6,000/- towards cost of litigation inter-alia.
All the 3 O.Ps have appeared before this Forum and filed written version separately. All the O.Ps have also denied all the materials allegation as leveled by the complainant against them and they have prayed for dismissal of the case with exemplary cost.
O.P No. 1 took plea that he is the authorized servicing centre of O.P No. 2. He admitted that the complainant brought the Tractor in his servicing centre on 16/10/2015 through his driver Dipankar Barman who reported that the Hydrolic of the Tractor was not working. On hearing the version of the driver the Job Card was issued. After examining the tractor it was found that there was external damage in the Hydrolic which was caused due to an accident. This fact was informed to the complainant with estimated costs of repairing the same but the complainant did not turn up.
O.P No. 2 took plea that it is the manufacturing company of the Tractor. It expressed that when the complainant did not pay any advanced money to O.P No. 1 for repairing the Tractor then O.P No. 1 referred the Tractor to North Bengal Agro Service Centre, Jalpaiguri regarding insurance claim etc. Unfortunately it was found that the Tractor was not registered by the complainant resulting which the complainant was not entitled to raise claim to Insurance Company. Then the complainant registered his Tractor with RTO and the insurance claim was process and the Tractor was repaired and all documents were made ready for final claim amount disbursement by the Insurance Company but complainant refused to sign on Insurance claim documents and did not take delivery of his Tractor.
O.P No.3 took plea that it is a finance company engaged into the business of retail financing to its prospective customers. On request of the complainant for availing finance assistant for the purchase of a vehicle the O.P. No. 3 after being satisfied with the credential of the complainant had provided loan to the tune of Rs. 4, 50, 000/-to the complainant’s agreement value (including interest) to be paid by the complainant was Rs. 6, 39,000/- which was to be paid by the complainant in 47 periodical installments starting from 28th August, 2014 and ending on 28th June, 2018. The said installments were to be paid within 20th day of every month. The borrower/complainant has executed a loan agreement in acceptance to the terms and conditions of the loan transaction bearing No. 3305577 dated 28th August, 2014. The complainant purchased a vehicle of his own choice being a Mahindra Tractor from the dealer of his own choice. Being a finance company, the O.P.No.3 had played no role in chosen the vehicle or the dealer. As per loan agreement the complainant agreed that so long such loan remains he shall re- pay the loan amount along with interest in periodical installment on the fixed due dates as specified in schedule of the loan agreement. On 8th May, 2017 the complainant was supposed to pay 33 installments, whereas the complainant has paid only 14th installments and is in default of Rs. 2, 58, 200/- i.e 19 installments and also late payment charge to the tune of Rs. 77, 681/- in addition to the fees are receivable of Rs.1, 90, 260/- (14 installments) is due and payable by the complainant. Since the complainant has been very irregular to payment making of the loan as such he may be termed as a defaulter. The complainant has committed a breach of terms of the loan agreement by non-payment and jeopardizing the security and also not creating any additional security for the same.
The O.P.No.3 being a Finance Company is completely separate legal entity and has nothing to do be the manufacturing company of the vehicle or the dealer from whom the vehicle was purchased. Therefore, the O.P.No.3 has nothing to do with the defects of the vehicle. It is further submitted on behalf of the O.P.No.3 that the claim for compensation for mental agony and financial losses etc. of the complainant are vague and vexatious and as such the instant case is liable to be rejected.
In order to prove the case the complainant has filed evidence on affidavit and submitted written argument. On the other hand all the O.Ps have also filed evidence on affidavit and submitted written argument in respect of their cases.
Both the parties have also filed documents as per ‘firisty’ in support of their case.
We have perused the materials on record very carefully and also heard the argument as advanced by the Ld. Agent for the complainant as well as Ld. Agents for O.P No. 1, 2 & 3.
In this context, the following issues are necessarily come up for consideration to reach just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s.2 (1)(d)(i)(ii) of Consumer Protection Act ?
- Has this Forum jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
As all the points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience.
It is admitted fact that the complainant has purchased a tractor from O.P.No.2. O.P.No.2 is a manufacturing company of the tractor. O.P.No.1 is an authorized agent of Mahindra for servicing and repairing the Mahindra Tractor. O.P.No.3 is a Finance Company which financed the complainant to purchase his tractor from O.P.No.2. After purchase of the tractor the complainant cleared up his first 13 installments up to August, 2015 @ Rs.13, 590/- per month to the O.P.No.3. Meanwhile, the hydraulic of the said Mahindra Tractor 475 DIB started mal-functioning resulting which the complainant brought the said tractor to the O.P.No.1 for servicing it. The O.P.No.2 admitted that the complainant brought his tractor in his servicing centre on 16/10/2015 through his driver Dipankar Barman who reported that the hydraulic of the tractor was not working. On hearing the version of the driver the Job Card was issued and O.P.No.1 told matters the complainant to come after 15 days. Therefore, the status of the complainant is “Consumer” with the strength of his purchase the tractor from O.P.No.2 and with the strength of servicing of the tractor from O.P.No.1. Therefore, the complainant is a “Consumer” u/s. 2(1)(d)(i)(ii) of the Consumer Protection Act.
The complainant is a resident of village & P.O. Majherdabri, P.S. Samuktala and District-Alipurduar and O.P.No.1 is situated at Birpara more within the District of Alipurduar. O.P.No.1 is the authorized servicing centre of O.P.No.2 and O.P.No.3 has financed the complainant. As such both the parties are situated and inter-linked to each other with the territorial jurisdiction of this Forum and the claim amount of the complainant does not exceed the pecuniary jurisdiction of this Forum as such the instant case is well maintainable and this Forum has both the territorial and pecuniary jurisdiction to entertain this case.
It is admitted fact that after purchase the tractor the complainant has cleared up his first 13 installments up to August, 2015 @ Rs. 13, 590/- per month and thereafter the hydraulic of the tractor started malfunctioning resulting which the complainant brought the said tractor to the O.P.No.1 for repairing the same and O.P.No.1 kept the said tractor with them by issuing a Job Card being No. 133 dated 16/10/2015 and told the complainant to come after 15 days.
Written Versions of the O.Ps and their evidence on affidavit made the case cumbersome. O.P No.1 submitted W/V and evidence on affidavit cleverly. It’s evasive denials created obstruction in determining the actual truth. But Para 8(d) of the W/V, submitted by O.P No. 2 revealed the real truth wherein it is stated that there was no manufacturing defect in the Tractor but damage of the Tractor caused due to external impact. The complainant did not pay and nor was willing to pay any advance money for repairing cost. The complainant had no valid Insurance for tractor as on the accidental damage of the Tractor as such being the only service dealer of Mahindra & Mahindra the O.P No. 1 referred the Tractor to North Bengal Agro Service Centre, Jalpaiguri regarding Insurance claim. Therefore, the O.P No. 1 shall have to show under what authority it referred the Tractor to North Bengal Agro Service Centre. W/V of the O.P No. 1 kept silence to that effect. No document is produced by the O.P No. 1 to show that it has authority to refer the Tractor to North Bengal Agro Service Centre. Therefore, there is deficiency in service on part of O.P No. 1. If the complainant refuse to pay the repairing charge or if he deny to receive and remove the Tractor in that event the O.P No. 1 ought to take legal action against him. But O.P No. 1 had no authority to refer the Tractor elsewhere (to North Bengal Agro Service Centre, Jalpaiguri). Whereas O.P No. 1 is the authorized service centre of O.P No. 2, as such O.P No. 2 has vicarious liability on the deficiency in service of the O.P No. 1.
O.P No. 3 has financed the complainant to purchase the Tractor and it has separate legal entity. In case of violation of the terms and conditions of the agreement executed by the complainant the O.P No. 3 has right to recall the loan and it is entitled to realize the loan amount from the complainant according to law. Therefore, we are on the view that there is no deficiency in service on part of the O.P No. 3 and the complainant is not entitled to relief against O.P No. 3.
The O.P No. 1 admitted that the Tractor of the complainant was brought to him on 16/10/2015 for it’s servicing and since then the same was lying in his custody or is lying elsewhere (as per O.P No. 2 it is referred by O.P No. 1 to North Bengal Agro Service Centre at Jalpaiguri). O.P No. 1 did not hand over the Tractor to the complainant up till now. O.P No. 3 has already recalled the loan agreement and demanded Rs. 4, 27,844/- from the complainant resulting which the complainant is under sufferings from mental agony and loss of income. Under such position of the complainant we are of the opinion that the instant case be allowed against the O.Ps excepting O.P No.3 and we are of the view that the complainant be compensated by the O.Ps Nos. 1 and 2 with equal liability. We do here by opined that it should be justified to pass a decree in favour of the complainant amounting to Rs. 2, 44,000/- + Rs. 6,000/- ( as litigation costs) against the O.P No. 1 and 2 or alternatively to make direction upon the O.P No. 1 and 2 for hand over the Tractor in active/functioning condition to the complainant or by way of replacing a new one.
Thus all the points are disposed of accordingly.
Fees paid are correct.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and the same is allowed on contest. The complainant do get a decree amounting to Rs. 2, 44,000/- + Rs. 6,000/- (as litigation costs); total Rs. 2,50,000/- against the O.P No. 1 & 2. Both the O.Ps Nos. 1 & 2 are hereby directed to pay the decreetal amount to the complainant with equal share that is Rs. 1,25,000/- each within 30 days from this day or alternatively hand over the Tractor after it’s necessary repairing; in active / functioning condition to the complainant or by way of replacing a new one within 30 days from this day failing which the complainant will be at liberty to put this decree into execution according to law.
In case for realization of the decreetal amount through execution the complainant will be entitled to 8% interest per annum on the decreetal amount from the date of filing this case from 21/09/2016 till realization of entire decreetal dues and both the O.P Nos. 1 & 2 shall have to pay fine of Rs. 100/- per day in equal share i.e. Rs. 50/- each to the Consumer Legal Aid Account of District Consumer Disputes Redressal Forum, Alipurduar till liquidation of the entire decreetal dues.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
