Presented by Smt. A.Behera, Member.
Facts of the case:-
This case is the out come of a Consumer Complaint filed in 2008 vide C.C. No. 84 of 2008 which was disposed on Dt.28/07/2009. The Order of the Forum in that case was direction made to the present petitioner to hand over the seized power tiller and pay a compensation of Rs.5,000/-(Rupees five thousand)only to the then Petitioner, the present Opposite Party in this case. This order was partly complied as payment of the compensation made as per the order but again dispute arose while complying with the other part of the order handing over the power tiller to the Petitioner in the old case, who under contain circumstances refused to receive the power tiller even after requests made by the present Petitioner for which this case happened.
Heard the submission of counsels of both the Parties in question.
Perused the case record and documents of the present case as well as the case record and documents attached with the old case which was also attached to the present case record.
We find the following facts on careful consideration:-
From the old case record it is evident that the power tiller was purchased in the year 2000 through the loan by the present Petitioner for which the present Opposite Party agreed to repay the loan on time through monthly installments.
In view of the defects with payments the power tiller was seized by the present Petitioner on Dt.15/01/2008.
The Petitioner on the old case repaid the whole amount asked amounting to Rs.1,04,000/-(Rupees one lakh four thousand)only on Dt.15/02/2008 for the release of the power tiller which perfectly goes in favour of the present Opposite Party, that he has got interest to get back his power tiller to use.
The original complaint filed on Dt.26/11/2008, which was disposed on Dt.28/07/2009.
Later dated 06/10/2009 made by this Petitioner to the Opposite Party to take delivery of the power tiller from the Bank and the letter shows that the power tiller is at the Bank premises and available in running condition.
Letter dated 11/11/2009 by the present Opposite Party to Petitioner speaks that the Opposite Party visited the Bank on Dt.03/11/2009 when he received the request letter on Dt.14/10/2009 and than the Bank Official said that the handle of power tiller is left at Sambalpur. So he returned.
As per letter dated 11/11/2009 by Opposite Party to Petitioner, again he visited the Bank on Dt.10/11/2009 to receive the same with his driver but got to know that the handle is not attached to the power tiller, so he left.
Another letter Dt.19/12/2009 by the Opposite Party to Petitioner speaks about the earlier two visits to ascertain the power tiller is in running condition along with a mechanic and requested the Opposite Party to open the power tiller in the presence of both Parties so it can be known what parts are intact and return the power tiller in running condition and bear the repairing expenses.
Letter of Opposite Party Dt.07/05/2010 is about another request made to hand over the seized power tiller and some other documents.
Another letter dated 12/07/2009 is to Tahasildar speaks about the grievance and a future hunger strike by the present Opposite Party if he do not set back his power tiller.
Letter of the present Petitioner Dt.23/11/2011 is about the seizer charges bound by this Petitioner for which he is suffering of inconveniences and pecuniary loss.
The present Petitioner have filed bills from Ganjam Security Services amounting to Rs.8,400/-(Rupees eight thousand four hundred)only and Rs.4,900/-(Rupees four thousand nine hundred)only for date 28/03/20011 and dated 19/11/2011 for keeping the seized power tiller in safe custody.
But the payments are issued to one Kumar Behera for Samaleswari Motors which is banker cheque which shows that the same was earlier addressed to Executive Engineer, WESCO, Bargarh. And the other cheque was made to Samaleswari Motors. However the bills and cheques do not match, neither the so called lifting/seizure charges of Rs.2,800/-(Rupees two thousand eight hundred are substantiated with proper bills. Even the amounts paid in the transactions are not purported to be for the only seizure of the power tiller with includes seizurer of another Tractor which is listed at No.l(one) in the bills which creates some doubts as well. However, the present Opposite Party did not challenge the bills during argument but only said that he is not aware of the bills. But the agreement speaks about seizure parking charges will be borned by the loanee it accrues.
Why the power tiller is taken to Sambalpur is not known nor clearly submitted.
As the vehicle was purchased prior to eight years of the seizure it is quite old enough and must have got enough wears and tears being used for that long which can not be over looked.
Even the old Petitioner visited the Bank with a mechanic as per the letters written to the present Petitioner, but why he did not opened the same and insisted an assurance from the Petitioner that he assured bear all the cost of repairing even without getting a rough estimate of the cost of the repairing is raising fingers towards the intentions of Petitioner the present Opposite Party. No letter of the present Opposite Party above envisages that the driver or mechanic tried to operate the power tiller starting it to know whether it starts or not but started litigating with the present Petitioner for getting the repair costs is not proper in the parts of the present Opposite Party and more when he knows that his machine was already more then eight years old when seized which was kept idle for only a year or a little more.
Even in absence of a seizurer list with the case record it can not be ascertained whether power tiller was in running condition and was working at all when it was lifted from the house of the present Opposite Party.
Even though the present Opposite Party said that it was not know to him that his power tiller was lifted by Ganjam Security Services, the truth can not be ruled out that often Banks lift their hypotheticated vehicle through seizure agencies when in needs and not by Bank staffs.
But as a matter of principles under the Bank seized the vehicle he might to take due case of the article till final delivery of the same are thus the burden to prove that he has taken all due care lies with the Bank, the present Opposite Party, who was not able to make it well enough with the absence of the seizure list which would have given all needful information about the working condition of the power tiller at the time of seize.
Seizure notice was served on Dt.16/10/2007 well before one year as submitted by the counsel of the Petitioner but the Opposite Party take no step to repay the outstanding.
Why an execution proceeding was not started is still in dark and not known to this Forum if a part of previous order is not complied with
Under the above mentioned facts and circumstances and basing on the submission of the counsels at the hearing. We conclude and order the following:-
(1) That the present Petitioner will make the minimum required repairing to question the working condition of the power tiller and in the present of the Opposite Party.
(2) If the Opposite Party insists an fitting of Branch New, original spare parts to the power tiller the Opposite Party will bear the cost of the Parts.
(3) The Petitioner will replace only those parts which were bear about at the time of repairing of the machine in the premises of the Opposite Party and not any other part even if it seems old in suggested.
(4) The Opposite Party will pay the parking charges incurred by the Bank as per the bill filed with old case record amount Rs.3,600/-(Rupees three thousand six hundred)only Dt.16/07/2008 and Rs.2,400/-(Rupees two thousand four hundred)only Dt.12/11/2008 in the case record, and till filing of this case as per the agreement between them while granting the loan.
(4) Both the Parties will complete the above parts within one month and the Opposite Party will accept the vehicle from the Bank at the Bank premises within the stipulated time period comparating with the Petitioner to show his clean hand.
(5) If even after the above steps done by the Petitioner the Opposite Party does not accepts the power tiller within the reasonable time said earlier from the Petitioner and raises further issues from litigation the present Petitioner is free to act avoiding to Bank's policies and guidelines on the matter.
Case disposed accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree,
( Smt. Anjali Behera) ( Miss Rajlaxmi Pattnayak)
M e m b e r. P r e s i d e n t.
