Complaint filed on 02.03.2010

                                                                                               Compliant disposed on 21.01.2015 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  :AT:: KARIMNAGAR, TELANGANA STATE

PRESENT: HON'BLE SRI B.SURESH, B.A., LL.M., Ist ADDL. DIST. & SESSIONS JUDGE AND PRESIDENT (FAC)
AND

SRI G.SREENIVASRAO, M.Sc.,B.Ed.,LL.B., PGADR (NALSAR), MEMBER

WEDNESDAY, THE 21^ST DAY OF JANUARY,TWO THOUSAND FIFTEEN

CONSUMER COMPLAINT NO.22 OF 2010

Between:-

Korni Sammi Reddy  S/o.Yella Reddy, Age 40 years, Occu: Agriculture R/o. H.No.8-3-197, Bhagathnagar, Karimnagar.

                                                                                                                                              ... Complainant  

     AND

1. TATA Capital Ltd. It’s Branch Office, 1^st Floor, Flat No.3,4,5 and 6, opp: Times of India, Road No.3, Banjara Hills, Hyderabad – 34 R/by its Manager – Sales and Services.
2. Telcon Construction Equipment Co. Ltd., Equipment Head Office, 1-8-58, Balasamudram, Hanamkonda R/by its Manager – Sales and Services.
3. Branch Office of Rama Excavator, H.No.2-8-21, Mukarampura, Karimnagar R/by its Branch Sales Manager.

                                                                                                                                           … Opposite Parties

          This complaint is coming up before us for hearing on 29-10-2014, in the presence of Sri N.Bhoom Reddy Advocate & Associates, counsel for complainant, Sri B.Srinivas Advocate/counsel for opposite party no.1 and opposite party no.2 & 3 remained exparte and on perusing the material papers on record, and having stood over for consideration till this day, the Forum passed the following:

::O R D E R::

This complaint is filed under Sec 12 of C.P.Act, 1986, praying this Forum to direct the opposite party no.1 to 3 to pay an amount of Rs.16,25,000/-, compensation towards all costs and mental agony and grant any other relief as deemed fit by the Forum.

Brief facts of the complaint:

1.       The complainant submits that he had purchased TATA JOHN DEERE Hydraulic Backhoe Loader with HD Tyre (construction equipment) having Model TATA JD 315-V from opposite party no.3 on payment of 10% of the total cost of the equipment i.e., Rs.20,75,000/-. The opposite party no.1 extended 90% financial assistance on the total cost of the said equipment. The finance amount (loan amount) needs to be cleared in 36 equal installments. The complainant vehemently submits that opposite party no.1 to 3 have released a pamphlet in the year 2007-2008 with regard to this equipment projecting that the machinery is sold at subsidized rate of interest of 4.5%, offering gold coin weighing 30 gms as prize with free of cost, documentation charges i.e., Rs.10,000/- on three years scheme with a warranty of one year or 2000 hours whichever is earlier. In addition to all these projections the complainant submits that the opposite party also agreed to supply a Trench Bucket at a cost of Rs.30,000/- and also insurance for the first year i.e., Rs.27,000/- free of cost. The opposite party no.1 is the financier who released the loan amount to the purchaser and the opposite party no.2 is the head office for the supply of construction equipment and supplied to the opposite party no.3 for sale. So all the projections offered by the opposite parties are being released in the pamphlet. At the time of transaction, the Sales Engineer and other staff have explained all such projections and shown calulations in writing on the back of the pamphlet. So after the purchase, the opposite party violated his assurances and hiked the rate of interest to 5.45% instead of 4.5%. As such the complainant sustained a loss of Rs.70,000/-. Similarly the opposite party provided only 1200 hours warranty for the service instead of 2000 hours or one year whichever is earlier. Due to which the complainant sustained a loss of Rs.3,00,000/-, in addition to this certain parts in the machinery had to be replaced during warranty time as per the advice of company engineer. But they were not provided by the opposite party no.1 to 3 under warranty. The cost of those parts comes to Rs.6,08,000/- (body main frame Rs.4,80,000/-; 2 tyres big – Rs.60,000/-; 2 small tyres  - Rs.30,000/- and Bucket Cylinder – Piston costing Rs.38,000/- ). Further the complainant submits that he also sustained a loss of Rs.30,000/- due to restricting the EMIs i.e., 34 instead of 36 EMIs. The complainant also claims other damages due to non-servicing the machinery amounting to Rs.3,50,000/-. So on the whole the complainant claims Rs.16,25,000/- compensation which is inclusive of Rs.2,00,000/- for the mental agony. Finally the complainant alleges that he got issued a Legal Notice on 15.11.2008 to which he received an unsuitable reply from the opposite party, therefore he filed a case before the Forum for necessary relief.

2.       The opposite party no.1 who is the financier to the complainant had submitted in his Written Version that the complaint is lacking the jurisdiction since the opposite party is situated at Hyderabad and the vehicle in dispute is meant for commercial purpose and the agreement with opposite party no.1 is a commercial agreement. Therefore, this complaint is not maintainable. He also submits that the complainant who availed the benefit under the terms of contract but shunning complying the reciprocal obligations of the agreement. He further rebuts that he is only a financial facilitator and advanced the loan amount on the requests of the customers/prospective buyers. So question of pamphlet and its contents are nothing to do with this opposite party. The opposite party also submits that he entered into Loan-cum-Hypothecation and Guarantee Agreement on 14.03.2008. As such the complainant is principal borrower and his wife is co-obligant stood as guarantor, jointly agreed to adhere to terms and conditions of it and he is never responsible for unknown acts and false commitments made by third party. Hence, it is to the complainant to explain how the opposite party no.1 is liable for warranty of the machine, supply a Trench Bucket and one year insurance coverage etc. So the contents of the pamphlet and its authentication are only escalating the reason to evade and avoid the loan amounts to opposite party no.1. As such there is no deficiency in service from opposite party no.1 company and finally mentioned that the complainant is misleading the Forum by not revealing the facts about the outstanding EMIs payable to the opposite party no.1 company and not revealed about how many times the cheques were bounced for want of funds, issued in favour of opposite party no.1 company towards remitting the EMIs. Therefore, he prayed that the complaint may be dismissed with exemplary costs.

3.       Opposite party no.2 & 3, despite service of the notices from the Forum remained absent on 01.04.2010, hence the Forum set them exparte.

4.       The complainant filed the material evidence and got it marked from Ex.A1 to A20 and similarly opposite party no.1 filed his documents marked as Ex.B1 to B6. Both parties argued the matter before the Bench.

          Now the point for consideration is whether the opposite party no.1 to 3 are responsible for the deficiency in service caused to the complainant, if so to what relief?

POINT:

5.       There is no dispute that the complainant who being an agriculturist had purchased construction equipment from opposite party no.3 under a finance arrangement with opposite party no.1. The main crux of the problem expressed by the complainant is that the opposite party no.1 to 3 released a pamphlet offering the TATA JD 315-V machinery at subsidized rate of interest of 45% offering gold coin weighing 30 gms as prize with a free of cost documentation charges i.e., Rs.10,000/- on three years scheme and also with an assurance of 2000 hours warranty or one year whichever is earlier and with other benefits like supply of a Trench Bucket costing Rs.30,000/- along with free of cost insurance for the first year costing about Rs.27,000/-. This pamphlet was released by the opposite party in the year 2007-08. Whereas after purchasing they have not adhered to the projections given in the pamphlet. Therefore, the complainant is seeking redressal in this Forum.

6.       In support of his claim the complainant filed documentary evidence which includes Ex.A1 which are the pamphlets released by the opposite party no.3 who is having branches at five places including the present one at Karimnagar in respect of TATA JD 315-V i.e. Hydraulic Backhoe Loader equipment also offering gold on purchase of this vehicle with a print of “LOGO” for Telcon Constructive Solutions which seems to be the opposite party no.2. Ex.A2 is delivery challan of the said vehicle sold to the complainant at a cost of Rs.20,75,000/- on 10.03.2008. Ex.A3 is the booklet released by the Telcon Constructive Solutions which constitutes all terms and conditions, and warranty certificate on the subject vehicle which shows that the warranty begins on 11.03.2008 and ends on 10.03.2009 or total operating hours 2000, whichever comes first. Ex.A4 is the Tax Invoice-cum-delivery challan issued by opposite party no.3 with the LOGO of authorized dealer Telcon Constructive Solutions (OP2). Ex.A5 is the delivery challan given by opposite party no.3 Dt: 11.03.2008. Ex.A6 to A13 are the service reports from Dt: 12.03.2008 to 17.11.2008. Ex.A14 is the Quotation Dt: 18.11.2008 given for the Bucket B/H Cylinder for Rs.28,350/- issued by the opposite party no.3 Ex.A15 is the receipt given by Hazi Automobile, Engineering Works, Karimnagar Dt: 21.12.2008 for various repairs of the vehicle amounting to Rs.12,500/-. Ex.A16 is the Cash Bill given by Aryan Engineering Works Dt: 25.11.2008 for purchase of Bucket B/H Cylinder and other items for Rs.24,800/-. Ex.A17 issued by opposite party no.1 Dt: 14.08.2008 which shows the repayment Index of the complainant i.e., installments for the period from 09.04.2008 to 10.08.2008. Ex.A18 is the Courier Receipts sent to opposite party no.2 & 3 addressed to opposite party no.1 to 3. Ex.A19 is the Legal Notice Dt: 29.12.2008 addressed to the opposite party no.2 & 3 and Ex.A20 is the Reply Notice Dt: 10.01.2009 given jointly by opposite party no.2 & 3.

7.       The opposite party no.1 relied on his documentary evidence like Ex.B1 which is a proposal for purchase of vehicle on hire purchase/loan scheme (containing 6 sheets) entered with complainant. The Ex.B2 is irrevocable Power of Attorney given by the complainant and his wife Mrs.K.Padma stood as guarantor. Ex.B3 is the Contract Details (in 5 pages) regarding the sale transaction and the loan amount on the subject vehicle which shows that there are 34 installments payable @ Rs.63,800/- and the tenure is for three years. The first installment date seems to be 09.04.2008 and the final date was shown as 09.01.2011. This document also shows that repayment of schedule from April 2008 to March 2010. Ex.B4 is the Release Order issued by opposite party no.1 (not legible). Ex.B5 issued by opposite party no.2 is the Invoice also not legible. Ex.B6 is the letter addressed to the opposite party no.1 regarding settling of the matter with regard to cheque bounce case against the complainant under Sec 138 of NI Act pending before XV Addl. Metropolitan Magistrate, Bangalore vide CC NO.1112/10 which also shows 2 DDs for an amount of Rs.13,900/- and Rs.49,900/- respectively taken in favour of opposite party no.1.

7.       The complainant has relied on the following citations to strengthen the facts of the present case:

(i). 2013 (4) ALD 100 (SC) – Bhanwar Kumar Vs RK Gupta & Anr with regard to unfair trade practice & making false statement.

(ii). 1992 (1) CPR SCDRC, Karnataka – M/s.Bhute Sales Corporation Vs Devkumar. If the evidence was found worthy of credence so refund of price money, labour charges & costs. 

(iii). 1994 (1) CPR SCDRC, West Bengal – S.K.Lakhotia Vs National Insurance Co. Ltd – Deficiency in service on the part of insurance company – upheld.

8.       On careful perusal of the material before us, it is a fact that pamphlet with photographs of the subject vehicle TATA JD315-V with 3 gold coins having the logo of the “Telcon Constructions” were offered by the opposite party no.3 and all this is evident from Ex.A1. The service reports dating from 12.03.2008 to 17.11.2008 (Ex.A6 to A13) in which the operating hours were shown as 1685 only whereas as per the warranty certificate, it is 2000 hours till 10.03.2009. The contention of the complainant is contrary to service report and no evidence was produced to show that the opposite party provided only 1200 hours warranty service. Infact as per Ex.A13 it is 1685 hrs i.e., beyond 1200 hrs. On this coment the complainant failed to prove. The Ex.B3 repayment details doesnot show that the complainant is a defaulter. However the Ex.B6 proves that the complainant intended to settle the matter for Rs.63,800/- by submission of (2) DDs for the said amount, to the opposite party no.1/financier.

9.       Whereas with regard to hike in rate of interest thereby sustaining loss, free insurance, documentation charges cannot be decided in the absence of proper document to that effect. However, the Ex.A3 is the warranty certificate from 11.03.2008 to 10.03.2009, as such the amounts spent for various parts under Ex.A15 (Rs.12,500/-) and Ex.A16 (Rs.24,800/-) are entitled by the complainant as they fall during the warranty period. Further the overall compensation sought in the legal notice (Ex.A19) was Rs.11.88 lakh whereas in the instant complaint sought was 16.25 lakh, so these two amounts leads to unrealistic figures. However the opposite party no.2 & 3 jointly admitted about the bumper offers in the advertising –pamphlet & schemes offered by them in the reply notice under Ex.A20. So the complainant claims are restricted to the admissible facts and proved ones only. Citations filed by the complainant are not relevant to the case on hand. He ought to have filed proper & relevant citations.

10.     In the result, the complaint is partly allowed and only the opposite party no.2 & 3 are jointly and severally directed to pay Rs.37,200/- (Rs.12,500/- + Rs.24,800/-) towards actual repair & Rs.60,000/- towards gold coin prizes and a compensation of Rs.1,00,000/- towards unfair trade practice & misleading advertisement to the customers and finally Rs.10,000/- towards cost of the litigation. Time for compliance 30 days.

Dictated to Stenographer and transcribed by her and after correction the orders pronounced by us in the open court this the 21^st day of January, 2015.

Sd/-                                                                                                              Sd/-

MEMBER                                                                                           PRESIDENT(FAC)

NO ORAL EVIDENCE HAS BEEN ADDUCED ON EITHER SIDE

FOR COMPLAINANT:                       

1. Ex.A1 contains (2) original copies of pamphlets released by the opposite party no.3.
2. Ex.A2 is original copy of Delivery Challan issued by Rama Excavator Dt: 10.03.2008.
3. Ex.A3 is the original copy of Delivery Certificate of Telcon Construction Solutions Dt: 11.03.2008.
4. Ex.A4 is the original copy of Tax Invoice-cum-delivery challan issued by opposite party no.3 Dt: 10.03.2008.
5. Ex.A5 is the duplicate copy of Delivery Challan issued by opposite party no.3 Dt: 11.03.2008.
6. Ex.A6 to A13 are the service reports from Dt: 12.03.2008 to 17.11.2008 issued by opposite party no.3.
7. Ex.A14 is the original copy of Quotation Dt: 18.11.2008 issued by the opposite party no.3.
8. Ex.A15 is the original copy of receipt issued by Hazi Automobile, Engineering Works, Karimnagar Dt: 21.12.2008.
9. Ex.A16 is the original copy of Cash Bill issued by Aryan Engineering Works Dt: 25.11.2008.

1. Ex.A17 is the photo copy of Repayment particulars issued by opposite party no.1 Dt: 14.08.2008.
2. Ex.A18 contains two Courier Receipts Dt 30/12.
3. Ex.A19 is the office copy of Legal Notice Dt: 29.12.2008 addressed to the opposite party no.2 & 3.
4. Ex.A20 is the photo copy of Reply Notice Dt: 10.01.2009 issued jointly by opposite party no.2 & 3.

FOR OPPOSITE PARTY:

1. Ex.B1 is the photo copy of Proposal for purchase of Motor Vehicle under Hire Purchase/Lease/Loan Scheme.
2. Ex.B2 is photo copy of Irrevocable Power of Attorney executed on 31.12.2007.
3. Ex.B3 is the photo copy of opposite party no.1’s Contract Details Dt: 26.03.2010.
4. Ex.B4 is the photo copy of Release Order issued by opposite party no.1 Dt: 31.12.2007.
5. Ex.B5 is the photo copy of Proforma Invoice issued by opposite party no.2.
6. Ex.B6 is the photo copy of letter from complainant addressed to opposite party no.1 for settlement.   

Sd/-                                                                                                              Sd/-

MEMBER                                                                                           PRESIDENT(FAC)