BEFORE THE DISTRICT CONSUMER

       DISPUTES REDRESSAL FORUM, BAGALKOT.

COMPLAINT NO.50/2017
Date of filing: 08/06/2017

Date: 09^th day of March, 2018

   P r e  s e n t: 

01) Smt.Sharada.K.                                                    President…

     B.A.LL.B. (Spl) 

02) Smt. Sumangala.C.Hadli.                         Lady   Member…

                            B.A (Music)

                V/s

JUDGEMENT DELIVERED BY SMT. SUMANGALA.C.HADLI, MEMBER

The Complainant filed this complaint u/sec. 12 of Consumer protection Act, 1986 seeking direction to Opposite Parties (herein after referred in short as Ops) to take back their manufactured defective vehicle from the complainant and return Rs.13,68,000/- the amount of down payment lus total paid installment i.e. Rs.4,40,000/- + Rs.9,28,000/- = Rs.13,68,000/- with interest till realization, Rs.5,00,000/- towards mental agony and harassments and such other reliefs deems fit under the circumstances of the case.

2.   Brief facts of the case are as follows:

The complainant is a resident of Hunashikatti and is an agriculturist and to improve his agricultural and also for his villagers land looking for the purchase of JCB and at that time, the agent of OP No.3 approached to the complainant at his village and he convinced the complainant about Ops new vehicle earth master ICV class-D excavators instead of old JCB Company and told to the complainant that the Mahindra Company has newly started this vehicle and will be sanctioned by Mahindra Company sister firm i.e. Mahindra Finance Branch Jamkhandi i.e. OP No.1, who sanctioned Rs.20,00,000/- loan to the complainant in which the complainant had paid Rs.4,40,000/- as down payment and from 07.09.2015 to 07.04.2017. The complainant has paid regular installments to OP No.1 even though there is no proper rain and income from Agricultural work. Thereafter complainant has purchased the said vehicle of the OP NO.3 bearing No.KA-01/MM 6473, Engine No.PUNRG5EA1032, Chasis No.15H3265. From the beginning of purchase the vehicle, the vehicle creating problem as not work properly. The engine runs slowly. For that the complainant through phone intimated Ops-Engineer and engineer came to the spot and repaired it, but due to vehicle stopped at work and restarted by OP Engineer took 5 to 6 hours given frustration to the complainant and also huge loss, but still from his agricultural income and help from his relatives, the complainant had paid monthly loan installments to OP No.1.

3.      The complainant further stated that for the month of November, 2016, the vehicle’s main engine stopped to work totally breakdown and after visited by OP-engineer, he told to shift the vehicle to OP No.2 showroom at Hubballi and after spend Rs.30,000/- fro shifting by the complainant, OP No.2 replaced entire engine under the warranty period and fixed new engine and issued letter on 20.03.2017. On 21.04.2017, again the above said vehicle engine break down for that the complainant registered his Complaint and OP-Engineer visited and after investigation issued Job Card that the vehicle is under breakdown and told to complainant again bring the said vehicle to the showroom of OP No.2 at Hubli. After lapse of 2 to 3 months from the replacement of entire engine, Ops vehicle new engine having same problem made the complainant under huge depression and how to pay the further loan installments to OP No.1. The complainant issued a legal notice through his counsel on 17.05.2017 and on 18.05.2017, but till today the Ops had not replied the same.  This shows that OP NO.1 to 3 had made deficiency in service, breach of trust and unfair trade practice towards the complainant. Hence the complainant constrained to file this Complaint seeking direction to Ops to take back their manufactured defective vehicle from the complainant and return Rs.13,68,000/- the amount of down payment lus total paid installment i.e. Rs.4,40,000/- + Rs.9,28,000/- = Rs.13,68,000/- with interest till realization, Rs.5,00,000/- towards mental agony and harassments and such other reliefs deems fit under the circumstances of the case.

4.      After receipt of notice, the OP No.2 and 3 remained absent and placed Exparte. OP No.1-Counsel present before the Forum and filed Written Version.

          Written Version of OP No.1 are as hereunder:

          The Complaint filed by the complainant is false, vexatious, capricious and not maintainable neither in law nor on the facts alleged in the Complaint. OP specifically deny that this OP sanctioned Rs.20,00,000/- loan to the complainant in which the complainant paid Rs.4,40,000/- as down payment or that from 07.09.2015 to 07.04.2017 complainant has paid regular installments to OP No.1. OP also submitted that complainant was very irregular in repayment from the inception and as on 06.09.2017, Rs.4,63,041/- (overdue installments and other charges) eight cheques issued towards installments dishonored due to insufficient funds. This itself shows malafide intention of the complainant to avoid repayment of loan. Further OP submitted that borrower is an agriculturist as admitted by him in the Complaint and has been using the vehicle for commercial purpose. Thereby complainant is not a ‘Consumer’ within the meaning of Sec.2 (1) (d) of the C.P. Act,1986. OP further submitted that OP No.1 is a Financier to the alleged vehicle and Financier is not responsible for the product issue as alleged in the Complaint. This OP is not having any role in selection of the vehicle and it was agreed as per Clause No.3 (d) of the loan agreement. There is no specific allegation against this OP in the Complaint and his OP is not a necessary party to this Complaint. Hence, the Complaint filed by the complainant is liable to be dismissed in limine with cost.

5.     The complainant has produced documents. The said documents are as follows:

1. Xerox copy of Statement of Account issued by OP1,

2. Xerox copy of letter issued by OP about the change of

    entire engine.

3. Xerox copy of Job Card issued by OP,

4. Insurance copy,

5. Sale Certificate,

6. Legal notice,

7. Postal Receipt,

8. Postal Acknowledgement.

9. Xerox copy of letter of Surrender of the Asset by the

    borrower.

10. Xerox copy of General Information of the Asset issued by Mahindra Finance.

The OP No.1 produced the certified copy of Loan Agreement and Statement of Account.

6.      By way of evidence, complainant has filed affidavit and filed 10 documents in support of his case. On the other hand, OP No.1 Shashidahr S Dugond, Legal Officer in Mahindra & Mahindra Financial Services Limited Hubli has filed Chief affidavit. The complainant has filed Written Statement. Heard the arguments and perused the documents.

7.      After considering the material placed on record, the following points that would arise for our consideration.

1. Whether the complainant has proved the deficiency in service on the part of the OP?
2. Whether the complainant has entitled to get compensation?
3. What order?

8.    After considering the evidence tendered by both sides and on careful consideration of the arguments advanced by both sides our findings for the above points are as follows.

1. Affirmative,
2. Partly Affirmative,

2) As per final order.

R E A S O N S

9. POINT NO.1 and 2: As there two points are inter-connected with each. In the instant case, it is undisputed fact that the Ops Mahindra Company has newly started this vehicle and will be sanctioned by Mahindra Company sister firm i.e. Mahindra Finance Branch Jamkhandi i.e. OP No.1, who sanctioned Rs.20,00,000/- loan to the complainant in which the complainant had paid Rs.4,40,000/- as down payment and from 07.09.2015 to 07.04.2017. The complainant has paid regular installments to OP No.1 even though there is no proper rain and income from Agricultural work. Thereafter complainant has purchased the said vehicle of the OP NO.3. From the beginning of purchase the vehicle, the vehicle creating problem and has not worked properly. The engine runs slowly. For that the complainant through phone intimated Ops-Engineer and engineer came to the spot and repaired it, but due to vehicle stopped at work and restarted by OP Engineer took 5 to 6 hours from which the complainant suffered mental agony and also huge loss, but still from his agricultural income and help from his relatives, the complainant had paid monthly loan installments to OP No.1. The complainant further stated that after lapse of 2 to 3 months from the replacement of entire engine, Ops vehicle new engine having same problem made the complainant under huge depression and how to pay the further loan installments to OP No.1. Hence, OP NO.1 to 3 had made deficiency in service, breach of trust and unfair trade practice towards the complainant.

10.   The complainant has filed ruling in Hon’ble State Consumer Disputes Redressal Commission, Chandigarh, Punjab in CC No.53 of 2014 (Ranyodh Singh S/o Shamsher Singh V/s Escort Construction Equipment Limited). The main points are as hereunder:

“……. Complainant purchased an earth digging machine manufactured by Opposite Parties No.1 and 2, for a sum of Rs.19,50,000/-. The machine was got financed by the complainant from Shriram Finance Limited for an amount of Rs.16,42,800/-and the remaining amount was paid by the complainant in cash to the Opposite Parties. The complainant purchased the said machine for earning his livelihood by way of self employment ……….

……… keeping in view above credentials, the defect is to be ascertained and if such a defect occurs in a newly manufactured vehicle/machine, then the onus, as already said above, is generally upon the manufacturer to prove that it is free from any defect and the defect in the same was not a manufacturing one……..

………… In the present case, learned counsel for the opposite parties was not in a position to give the exact cause for trouble some functioning of the vehicle. In ordinary course, we ask for the replacement of the parts of the vehicle, but in the present case, in order to end the dispute once for all, specifically when the complainant has got financed the vehicle from the Finance Company and he is facing difficulty in making repayment of the financed amount, which is swelling, it would be appropriate to direct the opposite parties to refund the entire amount i.e. Rs.19,50,000/- along with interest. For the mental agony and harassment suffered by the complainant due to manufacturing defect in the new machine purchased by him within few months of its purchase, the complainant is also entitled to suitable compensation…..”

The said Order is applicable to this present Complaint in hand.

11.    Looking to the facts and circumstances of the case and citation filed by the complainant, we come to the conclusion that OPs have failed to give service to the complainant as per the agreement without any Complaint. Otherwise, the Ops have to pay the cost of the vehicle with interest.

12.    Complainant produced copy of the O.Ps. letter of surrender of the asset by the borrower dated 16/09/2017 its shows that the said vehicle already taken the O.Ps. in this custody and the complainant has faced mental agony after purchasing the said defective vehicle and as per the above reasons, we allow this Complaint along with cost. The OPs are liable to pay the cost of the vehicle in a sum of Rs.4,40,000/- plus Rs.9,28,000/- is equal to Rs.13,68,000/- along with interest @ 8% p.a. till the date of realization, failing which interest @ 12% p.a. from the date of order, till realization. In addition, Rs.2,000/- towards cost of litigation and Rs.5,000/- towards mental agony. Hence, we answer Point No.1 in affirmative and Point No.2 in partly affirmative.

13. POINT NO:3 In the result, the complaint of the complainant is fit to be allowed in part. Hence, we proceed to pass the following:

O R D E R

     Complainant’s complaint is allowed in part as follows;

1. The OPs shall have to pay the cost of the vehicle in a sum of Rs.13,68,000/- (Thirteen lakh sixty eight thousand) along with interest @ 8% p.a. will be charged from the date of filing of Complaint, till realization.

2.  The OPs shall have to pay an amount of Rs.5,000/- (Rupees five thousand) for mental agony and Rs.2,000/- (Rupees two thousand) towards litigation expenses to the complainant.

3.  The OPs are directed to comply this order within a period of 30 days from the date of receipt of this order, failing which the above said amount of Rs.13,68,000/- shall carry interest at the rate of 12% per annum from the date of order, till realization.

4.  Free copy of this order shall be sent to the parties immediately.

        (Dictated to the Stenographer directly on computer corrected by me and then pronounced in the open Forum on this 09^th day of March, 2018).