BEFORE THE DISTRICT CONSUMER FORUM :: WARANGAL
Present : Sri D. Chiranjeevi Babu,
President.
And
Sri Patel Praveen Kumar,
Male Member.
Tuesday, the 21st day of June, 2011.
CONSUMER COMPLAINT No.66/2009
Between:
Tati Sammaiah, S/o.Suraiah,
Age: 65 years, Occu: Retd. Forest Officer & Agriculture,
R/o.Chelpaka Village,
Eturnagaram Mandal,
Warangal District …Complainant
And
1. The Authorized Dealer,
Navajyothi Tractors,
Opp:Alankar Function Palace
(Old Alankar Theatre), Hanamkonda,
District Warangal
2. The Service Manager,
Service Department,
Industrial Plot No.03, Udyog Kendra,
Dist.Goutham Budh Nagar,
(UP) Greater Ninida – 201 396. Impleaded as per order
in I.A.415/2009,
3. The L & T Finance Limited, 802, dt:08-06-2010.
Swasthik Chambers, 8th Floor,
C.S.T. Road, Chembeur,
Mumbai – 400 071.
…Opposite Parties
Counsel for the Complainant :: Sri N.Gowrishankar, Advocate.
Counsel for the Opposite Party No.1 :: Sri K.Narsimha Rao, Advocate.
Counsel for the Opposite Party No.2 :: Sri G.Venkata Ramana, Advocate. Counsel for the Opposite Party No.3 :: Sri Ch Upender, Advocate.
This complaint is coming for final hearing before this Forum, the Forum pronounced the following order.
ORDER
Sri D. Chiranjeevi Babu, President.
This complaint is filed by the complainant Tati Sammiah against the Opposite Parties under section 12 of Consumer Protection Act, 1986 for a direction to provide a new tractor, to pay compensation of damages and loss of income to the complainant at the rate of Rs.4,000/- per day from the date of filing of the complaint pending disposal of the complaint and with costs.
The brief averments contained in the complaint filed by the complainant are as follows:
The case of the complainant is that the complainant is the owner and possessor of the LMV Tractor of New Holland Tractors India Pvt. Ltd., bearing Registration No.AP36 R 5685, and the same was purchased from the Opposite Party No.1 for Rs.4,56,000/- with a loan facility from the L & T Finance Ltd., of Rs.2,60,000/- and the balance amount was paid by the complainant. The complainant and the Opposite Party have entered into an agreement of warrantee on 29-06-2007 for two years up to 29-06-2009. After delivery, the complainant has noticed that the vehicle is defective and brought to the showroom of Opposite Party, but after getting minor repairs, the Opposite Party returned the tractor. Likewise, so many times the tractor was getting trouble and rectified by the Opposite Parties mechanic. Lastly on 16-05-08 the vehicle was completely failed to work and the mechanic of Opposite Party attended the problem and gain on 26-05-2008 also attended the problem but it is not rectified. The Opposite Party stated that they will provide new tractor in case of non-rectifying of the mistake in engine. Accordingly the complainant has left the tractor with Opposite Party and visited several times, but in vain. The complainant got issued legal notice to Opposite Party on 27-06-2009 claiming damages of Rs.4,000/- per day and to attend the repairs of the tractor or to replace the same with new one. The legal notice was returned, unserved as Opposite Party left. The acts of Opposite Party amounts to deficiency of service. Hence, filed this complaint praying to direct the Opposite Party to provide a new tractor to the complainant without any delay and to award compensation towards loss of income @ Rs.4,000/- per day with costs.
Thereafter the Opposite Party No.1 filed counter stating that in this case the Opposite Party No.3 is an essential party and he has to be added. Thereafter the complainant added the Opposite Party No.3 as party in this case. The Opposite Parties 1 & 3 they filed their Written Versions and Opposite Parties 1 & 2 filed their affidavits. The Opposite Parties 1 & 2 affidavits are one and the same and Opposite Party No.3 written version & affidavit also filed.
The Opposite Party No.1 filed the Written Version stating that the complainant is the owner and possessor of the New Holland Tractor Model NH 3230 with its serial number vide registration No.AP36 R 5685 as stated was true and correct to certain extent for the reason that the vehicle of the complainant referred above was under hypothecation with L &T Finance and as such unless and until his hypothecation is terminated by way of full discharge of loan amount the complainant cannot be termed as owner to the said tractor in view of its charge over the same. It is true that the complainant purchased the tractor with the amount referred. This Opposite Party entered into agreement of warranty on 29-06-2007 and warranty period is for two years as stated is true. The complainant is not entitled for any warranty for the defect of the vehicle as pleaded. The warranty shall not be applied to O.E.M. parts like fuel injection equipment, and others as stated in the warranty. The defects in respect of fuel injection pump problem, and even if the same is believed the same would not come within the warranty since it is part of OEM parts. The Opposite Party without finding the mechanical problem, by attending only minors repairs on every occasion and in consequence of the same, the complainant use to take the tractor from his village to show room of this Opposite Party on several times, and lastly on 16-05-2008 as alleged is false & incorrect and subsequent to 16-05-2008 the complainant produced his vehicle and got it checked and found his satisfaction in doing the work properly and accordingly on 26-05-2008, 20-06-2008 and 16-07-2008 lastly the vehicle taken back on 18-07-2008 by the complainant and to that effect the job card dt:16-07-2008 amply proves that the complainant had taken back his vehicle. Further this Opposite Party stated that the notices issued by L & T Finance to which the vehicle of the complainant was hypothecated and in that regard through the complainant mentioned about the finance to the vehicle but deliberately omitted to specify the notice of L & T Finance more particularly the notice issued by L & T Finance limited and as such ignoring and suppressing the custody of the vehicle with L & T Finance filing complaint pleading that the vehicle is with this Opposite Party is itself shows how and the manner in which the complainant is intending to harass this Opposite Party for no fault on his part and the Opposite Party No.1 requested this Forum to dismiss this case.
The Opposite Party No.3 filed the Written Version stating that the complainant is the owner of the tractor bearing No.AP36 R 5685 having purchased the same from the Opposite Party No.1 with a loan facility from this Opposite Party No.3 of Rs.2,70,000/- under the loan cum hypothecation. According to the hypothecation agreement the complainant has agreed to pay the 12 quarterly installments of Rs.29,950/- regularly amounting to tRs.3,59,400/- commencing from 02-10-2007 to 02-10-2010, but having failed to pay the installments regularly the complainant has handed over the vehicle to this Opposite Party No.3 and as per the terms and conditions of the hypothecation agreement having reminded the complainant to pay the installments due and after giving post repossession cum sale notice to the complainant, this Opposite Party No.3 has sold away the vehicle and realized the balance amount due by the complainant to this Opposite Party No.3 which is under the due process of law and as per the terms and conditions of the loan cum hypothecation agreement. This Opposite Party No.3 has acted upon the terms and conditions agreed by the complainant under the Loan cum hypothecation agreement and as such the allegation of the complainant that this Opposite Party No.3 has shared the incomes from the sale proceeds of the tractor thereupon with the Opposite Party No.1 shall not arise as this Opposite Party is no where concerned with the Opposite Party No.1 and the Opposite Party No.3 requested this Forum to dismiss this Case.
The complainant in support of his claim, filed his Affidavit in the form of chief examination and also marked Exs.A-1 to A-17. On behalf of Opposite Parties Cheruku Prathap Reddy & Maram Madhu Babu filed their Affidavits in the form of chief examination and also marked Exs.B-1 to B-7.
Now the point for consideration is:
1) Whether there is any deficiency of service on the part of the Opposite Parties?
2) If so, to what Relief?
Point No.1:-
Now this Forum has to see whether the complainant is entitled to get a new tractor from Opposite Party No.1 or not.
For this our answer is that the complainant is not entitled to get a new tractor from the Opposite Party No.1, because the complainant brought the vehicle to the Opposite Party No.1 and got it repaired and taken back the same tractor after got repaired by the Opposite Party No.1. The documents filed by the Opposite Parties i.e. job cards Ex.B-1, Ex.B-2, Ex.B-3, Ex.B-4 Ex.B-5 & Ex.B-6 clearly goes to show that the complainant brought the vehicle to the Opposite Party No.1 and after got it repaired the same vehicle the complainant taken away back. When already the complainant has taken away back, how the complainant is entitled to get a new vehicle from Opposite Party No.1 and moreover this vehicle is not in the custody of Opposite Party No.1. The vehicle is in the custody of Opposite Party No.3, who is a original hypothecation because the same Opposite Party i.e. Opposite Party No.3 is financed sum amount to the complainant then the complainant purchased the same. So in this case there is no any deficiency on the part of Opposite Parties 1 & 2 because the Ex.B-1 to Ex.B-6 clearly goes to show that the Opposite Party No.1 got it repaired and gave the vehicle to the complainant and the complainant taken away back his vehicle i.e. he has taken the possession of the tractor immediately after got repaired and further in cleverly manner the complainant filed this case at first itself against the Opposite Parties 1 & 2. But why he has filed the same we are unable to understand because he clearly knows about that i.e. he himself handed over the vehicle to the Opposite Party No.3, in Ex.A-10 clearly goes to show that this notice issued by the Opposite Party No.3, as per this document, it goes to show that the complainant has handed over his tractor to the Opposite Party No.3 as he was defaulter to the Opposite Party No.3, thereafter the Opposite Party No.3 gave show cause notice with regard to the default amount of the complainant. So here the main question is that, in a cheating and fraudulent manner the complainant filed this case against the Opposite Parties 1 & 2 previously, thereafter the Opposite Party No.1 pointed out the same point with regard to the Ex.A-10 sent by the Opposite Party No.3. Then the complainant added the Opposite Party No.3 as party in this case. So it is main fault of the complainant, actually he himself knows everything he has handed over the vehicle to the Opposite Party No.3, then the Opposite Party No.3 also issued show cause notice with regard to the default amount i.e. Ex.A-10 clearly goes to show that “he has handed over the vehicle i.e. he surrendered the above said equipment under their custody. Thereafter, they called upon to pay the termination value Rs.59,900/- under the said agreement within 7 days from the date of correspondence of this notice towards full and final discharge in respect of the above equipment under the loan cum hypothecation agreement, should fail to do so they shall be constrained to dispose off the said equipment and appropriate the sale proceeds towards the receivable amount under the said loan cum hypothecation agreement in case of any shortfall after such appropriation”. So this document clearly shows the vehicle is in the hands of Opposite Party No.3 only, he himself financed to the complainant to purchase of the said vehicle, so the complainant is defaulter, so the Opposite Party No.3 did like i.e. gave show cause notice i.e. Ex.A-10. In this case the entire fault isin the hands of complainant he himself has to repay the entire amount and get the tractor from Opposite Party No.3 only. We see no grounds to allow this complaint because the complainant he himself cheating the Opposite Parties 1 & 2 and as well as Opposite Party No.3 by way of not mentioning the facts in this case because as per Ex.A-10, it clearly shows that he himself surrendered the vehicle and Opposite Party No.3 has given show cause notice to the complainant. Without mentioned the particulars the complainant filed this case before this Forum. Further the complainant also filed another case i.e. O.S.57/2009 on the file of Hon’ble I Additional District Judge, Warangal with regard to the decree for the total relief amount, award compensation and warranty is value of Rs.22,25,728/- with costs. We are not concerned for that case, so far as our case is concerned i.e. CC 66/2009. There is no any deficiency on the part of the Opposite Parties 1, 2 & 3, so they are not liable for anything.
For the foregoing reasons given by us, we come to the conclusion that we see no grounds to allow this complaint and accordingly this first point is decided in favour of Opposite Parties against the complainant.
Point No.2: To what Relief:- The first point is decided in favour of Opposite Parties against the complainant this point is also decided in favour of Opposite Parties against the complainant.
In the result, this complaint is dismissed without costs.
(Dictated to the Stenographer, transcribed by her, corrected and pronounced by us in the open Forum today, the 21th June, 2011).
President Male Member
District Consumer Forum, Warangal
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
On behalf of Complainant On behalf of Opposite Parties
Affidavit of complainant filed. Affidavit of Opposite Parties 1 & 2 filed.
EXHIBITS MARKED
ON BEHALF OF COMPLAINANT
1. Ex.A-1 to A-7 are the Original Tax Invoices of the Complainant issued by Opposite Party
No.1
2. Ex.A-8 is the Original copy of Warranty Certificate with declaration of the complainant.
3. Ex.A-9 is the Original copy of Telugu Version of Warranty particulars, Terms & Conditions
of New Holland Tractor.
4. Ex.A-10 is the Original copy of Telegram dt:31-12-2008 by Opposite Party No.3 to the
complainant.
5. Ex.A-11 is the Original copy of Certificate of Registration (Form-23) of the complainant.
6. Ex.A-12 is the unserved Speed Post Letter.
7. Ex.A-13 is the Office copy of the Legal Notice dt:27-06-2009 from complainant’s counsel to
the Opposite Party No.1
8. Ex.A-14 is the Office copy of the Legal Notice dt:06-07-2009 from complainant’s counsel to
the Opposite Party No.1
9. Ex.A-15 is the Under Certificate of Posting Certificate.
10. Ex.A-16 is the complaint dt:29-01-2009 to the Sub Inspector of Police, Hanamkonda from
the complainant.
11. Ex.A-17 is the Xerox copy of Tractor Work Rate List issued by Tractor Owners Union,
Eturunagaram, Warangal District.
ON BEHALF OF OPPOSITE PARTIES
1. Ex.B-1 to B-6 are Job Cards belongs to the complainant.
2. Ex.B-7 is the O.S. of the complainant bearing No.57/2009 on the file of Hon’ble I Additional District Judge, Warangal.
PRESIDENT
