DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 24th day of April, 2020
C.D Case No. 78 of 2017
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Sri Gajendra Parida
S/o Sri Rama Chandra Parida
At/Po: Kolha,
Ps: Tihidi
Dist: Bhadrak
……………………. Complainant
(Versus)
1. Shriram Transport Finance Comp. Ltd.
Branch Office At: Jena Complex, end Floor, In front of Vishal Mega Marts,
At: Chapulia, By-pass, Po/Ps/Dist: Bhadrak, 756100
2. M/S Basanti Auto Agency,
Authorized Dealer of Mahindra & Mahindra Ltd. All Range of Vehicles
NH- 5, Januganj Golei
At: Balasore, Po: Industrial, Dist: Balasore
3. The Chairman, Mahindra & Mahindra Finance Ltd.,
Mahindra & Mahindra Ltd, Gate Way Building, Polo Bunder, Mumbai- 400039
…………………………..Opp. Parties
Counsel For Complainant: Sri G. Bal & Others, Adv
Counsel For the O.Ps No. 1: Sri B. K. Swain & Others, Adv
Counsel For the O.Ps No. 2: Sri B. Sahu (B) & Others, Adv
Counsel For the O.Ps No. 3: Ex-parte
Date of hearing: 10.12.2019
Date of order: 24.04.2020
RAGHUNATH KAR, PRESIDENT
This dispute arises out of the complaint filed by the complainant alleging deficiency of service and unfair trade practice against the O.Ps. The facts of the complaint are to the effect that the complainant was interested to start a transport business. The complainant had visited to the office of the OP No. 1 for availing a loan to purchase a vehicle. The OP No. 1 being the financial company could manage to take the signature of the complainant in the official document and in some printed forms on the connivance the OP No. 2 being the authorized dealer of Mahindra & Mahindra Ltd. The OP No. 1 & 2 instigated the complainant to induce on the agreement which was executed among the complainant and the OP No. 1 & 2. The complainant requested the OP No. 1 & 2 to handover a copy of the said agreement but they tantalized the complainant but they have not handed over a copy of the said agreement to the complainant. But the OP No. 1 & 2 both have never handed over a copy to the complainant till the date of initiation of this complaint. The complainant requested again and again to the OP No. 1. The OP No. 1 assured him to deliver the same but the OP No. 1 & 2 did not deliver the same to the complainant. Finally the complainant came to know that the said agreement was executed between the complainant and the OP No. 1 vide No. DLS0010530005on dt. 31.05.2011. Accordingly the cost of the vehicle has been fixed by the OP No. 1 Rs 3,31,970/- & the OP No. 1 agreed to finance of Rs 2,60,000/- and accordingly the rest amount has been paid by the complainant as earnest money. The complainant deposited the Rs 71,960/- only & the invoice has been issued by the OP No. 1 for the above vehicle on dt. 30.05.2011. The OP No. 3 is its manufactured. After purchase the vehicle has been duly registered before R.T.A Bhadrak vide Regd No. OD-22E-5873. Accordingly the vehicle has been played by the complainant on road. But many a times it shown technical problem. Though it has been informed to all the O.Ps they shown their inability. For which the complaint repair the vehicle on his own cost in the show room & some times in open market. (The copy of the repairing bills is filed here with).
That it is wise to mention here that, after only five months the engine of the schedule vehicle has been seized on the way on dt. 23.11.2011 & after earnest request the OP No. 2 change the engine on dt. 09.12.2011 by held up near about one month. However in this poor financial crisis of time schedule vehicle became more burdens. However in his poor earning & detain of the vehicle the complainant also paid some installments & obtain some receipts & some payments given on good faith & though OP No. 1 assured to give due money receipt but till today did not give the same. In other hand OP No. 1 himself & through his agents not only cheated the complainant but also his conduct, unfair trade practice affected the further career of life of the complainant. The OP No. 1 & 2 advised the complainant if he would return back the vehicle in good & proper condition then the vehicle may received by them & the loan amount would have been clear from the date. However as per the advice & instruction of O.Ps the complainant repair that vehicle by investing his own money on dt. 12.09.2013 at Utkal Automobiles, Bhubaneswar again & on the nest day said vehicle has been handed over to OP No. 2. After return back the said vehicle the complainant requested O.Ps to supply the clearance certificate. But it is unfortunate to state here that the O.Ps time and again assured to give him clearance certificate. That the cause of action for this case arose on dt. 31.03.2017 when the complainant sent his reply requesting to supply the agreement copy executed between the complainant & OP No. 1 within seven days from receiving of the reply & he remain silent till today.
The complainant has sought for the following reliefs:-
1. The O.Ps be directed to pay the loan amount of Rs 3,31,970/-, the total cost of the vehicle to the complainant & Rs 2,00,000/- only towards payment made from time and again towards repairing cost of the said vehicle bearing No. OD-22E-5873 immediately.
2. The O.Ps be directed to pay a Rs 50,000/- for their deficiency in service.
3. The O.Ps be further directed to pay compensation of Rs 1,00,000/- towards and the mental and physical agony caused to the complainant and Rs 1,00,000/- towards legal costs.
The complainant relied upon the documents (Xerox copy):-
1. Xerox copy of certificate issued by the OP No. 2 after replacement of the engine on dt. 09.12.2011- 1 sheet.
2. Xerox copy of bills paid to OP No. 2 at the time of servicing- 1 sheet.
3. Xerox copy of bill paid by complainant for repairing the vehicle outside of show room of OP No. 2- 7 sheets.
4. Xerox copy of Advocate notice issued on dt. 03.01.2017 by Advocate Sri Nirup Kumae Behera to complainant- 2 sheets.
5. Xerox copy of reply given by the Advocate on dt. 21.03.2017 to OP No. 1- 2 sheets.
The OP No. 1 appeared in this Forum through his concerned advocate and filed his written version. He has challenged the complaint with regard to the maintainability, non-joinder of necessary party and proper party. He has also challenge the limitation of this proceeding. The OP No. 1 further challenged the jurisdiction of this Forum with regard to the complaint. The OP No. 1 has denied all the allegations made by the complainant against him. According to the OP No. 1 the averments made in the complaint are on false, fabricated and abuse and suppression of truth. It is not a fact is that the OP No. 1 & 2 both managed to take signature on the complainant and arrange a loan for him. Both the O.Ps persuaded the complainant to put his signature in several forms and documents. The complainant requested the O.Ps to handover him Xerox copy of those papers but they denied to do so. The OP No. 1 has denied that loan agreement was executed among the parties. He has also challenged the cause of action it is true that this OP is the financier and the complainant and his guarantor after executing loan cum hypothecation agreement dt. 30.05.20111 with this OP availed a vehicle loan amounting to Rs 2,60,000/-. The financier charge for the loan was Rs 1,22,782/-. Total value of the loan cum hypothecation agreement was Rs 3,82,782/-. The complainant agreed to pay the loan with interest in 47 equal monthly installments. Accordingly the complainant repaid a sum of Rs 1,52,048/- by 09.03.2013 but thereafter failed to pay the installments in spite of repeated demands by this OP. Thereafter as per the terms and conditions of the agreement the O.Ps repossess the vehicle and thereafter it was sold on auction at a cost of Rs 1,20,000/- and the said amount was credited to the account of the complainant. After adjustment of the auction amount, an amount of Rs 5,51,068/- remained due upon complainant as on 04.12.2016. For realization of the amount this OP as per the terms of the agreement referred the matter to the arbitrator and vide order dt. 20.04.2017 Mr. Sirish Chandra Mishra (Dist. Judge) (Retd.) the sole arbitrator awarded an amount of Rs 5,51,068/- in favour of this OP which is well within the knowledge of the complainant. Hence the OP No. 1 has prayed for the dismissal of this complaint.
On the other hand the OP No. 2 has filed his written version as follows that he has challenged the maintainability, cause of action, limitation of this complaint. The OP No. 2 has also denied all the allegations made by the complainant against him in this complaint. The OP No. 2 has expressed that the complaint story is false, frivolous and concocted. The fact is that the complainant is a defaulter of the financier for which the financier has taken the legal action against the complainant and in order to escape from the legal liability the complainant has filed this case adding this OP No. 2 as a party stating this type of false plea. This OP No. 2 has unnecessary dragged into this case that has not done any deficiency of service and as such the complainant is not entitled to get any relief for which the case is liable to be dismissed under section 26 of CP Act. Hence the OP No. 2 has prayed for the dismissal of this complaint.
OBSERVATION
We have already perused the complaint, the documents filed by the complainant as well as the written version’s filed by the O.Ps. The complainant has described by the complainant in an exaggerated story. In fact there was an agreement executed by both the parties. The complainant deposited Rs 71,960/-, after that the invoice was issued by the OP No. 1 by the above vehicle on 30.05.2011. After purchasing the vehicle the same has been registered before the RTO Bhadrak vide registered No. OD-22E-5873. Accordingly the vehicle was played on the road by the complainant but many times some defects were found in the vehicle. The complainant informed this matter before the O.Ps many times but they did not pay any heed to the complainant. On 23.11.2011 the engine of the said vehicle was seized and after making earnest request to the OP No. 2. The engine was changed after one month but the complainant made expenses from his own pocket for changing of the engine. Although there were terms and conditions made in the agreement the O.Ps would bear the repairing cost but actually the O.Ps did not do so. The complainant has filed a number of documents regarding the expenses was made for the repairing of the engine. Although the complainant has asked for the copy of the loan agreement to the O.Ps again and again but they remained silent. The O.Ps have no vital documents to prove their case. The complainant as alleged that the O.Ps have committed deficiency of service and unfair trade practice towards the complainant. As the copy of the loan agreement has not been either filed by the complainant or by the O.Ps and no warranty card was issued by the O.Ps to the complainant. So in absence of copy the loan agreement and warranty card it is too difficult to reach at the conclusion of this case. The allegation made by the complainant has not been strictly denied by the O.Ps so it is true that the complainant has purchased the vehicle from the OP No. 2 and it is well proved by the documents and the money receipts filed by the complainant in this Forum he has paid the cost of the vehicle Rs 3,01,970/- to the OP No. 2 and Rs 2,60,000/- has been paid towards earnest money. It is well proved that the alleged vehicle was suffering from manufacturing defects but the OP No. 3 as he has been impleaded as party a to this case is found absent in this case and has neither appeared nor filed his written version so he has been set ex-parte. Therefore it is ordered;
ORDER
In the result the complaint be and the same is allowed against OP No. 1 & 2 on contest and ex-parte against OP No. 3. The OP No. 2 & 3 are here by directed to pay Rs 3,31,970/- to the complainant towards the cost of the vehicle and Rs 2,00,000/- to the complainant towards the repairing cost made by the complainant time to time. The OP No. 2 & 3 are also directed to pay Rs 10,000/- towards the deficiency of service, mental agony and dishonest trade practice caused by them to the complainant. It is further directed to the OP No. 2 & 3 to pay Rs 10,000/- to the complainant towards the cost of the litigation.
This order is pronounced in the open Forum on this day of 24th April, 2020 under my hand and seal of the Forum.
