The Complainants have filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Concerned Authority, The Winner, Nalanga, Dist- Bhadrak, O.P No.2 is the Concerned Authority, Magma Fincorp Limited, Balasore, O.P No.3 is the Concerned Authority, Magma Fincorp Limited, Bhubaneswar, O.P No.4 is the Concerned Authority, Magma Fincorp Limited, Calcutta, O.P No.5 is the Concerned Authority, Mahindra and Mahindra Financial Services Ltd., Balasore and O.P No.6 is Sri Pramod Kumar Lenka, Lunia, Dist- Bhadrak.
2. The case of the Complainants in brief is that the Complainant No.1 in order to purchase a new Mahindra and Mahindra tractor for agricultural purposes, has deposited a sum of Rs.1,20,000/- (Rupees One lakh twenty thousand) only as earnest money before O.P No.1 and obtained a bill on 25.09.2014. Accordingly, the O.P No.2 in order to sanction loan to the Complainant No.1, obtained signature from the Complainant in several printed unfilled forms and the O.P No.1 delivered the tractor to the Complainant No.1 along with supply delivery challan and other papers. Thereafter, the Complainant No.1 approached the O.Ps to handover the vehicle papers in several times, but the O.P No.2 on 25.12.2014 replied that the vehicle loan is not sanctioned, rather it will be sanctioned in the name of any of your family member and accordingly, the loan is sanctioned in the name of her brother-in-law. The O.P No.2 also obtained signatures from the Complainant No.2 in different printed forms and also five nos. of blank post dated cheques for security, but copy of said forms and loan agreement were not given to this Complainant on demand. As such, the O.P No.2 provided with sale certificate, delivery challan and retail invoice in the name of the Complainant No.2 on 30.12.2014 and also assured to give vehicle papers and loan agreement within seven days and fixed EMI accordingly. The O.P No.2 though assured but has not handed over the R.C book to the Complainant along with other vehicle related papers, for which the vehicle became idle due to want of registration number as such she could not derive any income to repay the loan. All the papers were kept with the O.P No.3. But, the Complainant in order to get vehicle documents paid a sum of Rs.1,00,000/- (Rupees One lakh) only towards down payment as per demand by O.P No.2 on 05.01.2015 and also a sum of Rs.37,980/- (Rupees Thirty seven thousand nine hundred eighty) only towards loan instalment. The O.P No.2 has misappropriated the subsidy amount. Thus, the Complainant on an enquiry with R.T.A, Balasore came to know that the said vehicle was already registered in the name of Pramod Kumar Lenka of Lunia, Dhusuri, Bhadrak and the tractor supplied to the Complainant was not a new one, rather an old repossessed and painted. After facing a lot of problems, the Complainants had been to the O.Ps in several times, but the O.Ps did not pay any heed to it, rather threatened to pay the loan amount, which is a clear deficiency of service by the O.Ps, thereby causing mental agony and financial loss to the Complainant. In addition, service rendered by the O.Ps is unfair trade practice in order to grab hard earned money of the Complainant. Cause of action to file this case arose on 06.05.2015. The Complainant has prayed for replacement of the above said vehicle with a new one or refund of down payment and instalment amount of Rs.2,57,980/- (Rupees Two lakhs fifty seven thousand nine hundred eighty) only along with compensation for mental agony and litigation cost.
3. Written version filed by the O.P No.1 through his Advocate denying on the point of maintainability, Consumer as well as the cause of action. The O.P No.1 has further submitted that the Complainants have purchased one sonalika tractor on loan basis. The Complainants approached the O.P No.1 to purchase one Mahindra and Mahindra tractor (475 Bhumiputra) and the O.P No.1 gave the quotation of Mahindra and Mahindra tractor to the Complainants. The Complainants consulted with the O.P No.2 regarding the finance of the tractor directly. After sanction of loan by the O.P No.2 in favour of the Complainant No.2, the O.P No.1 delivered the Mahindra and Mahindra tractor (475 Bhumiputra) bearing Engine No.RJNB04139 and chassis No.RJNB04139 to the Complainant No.2 on 25.12.2014. The Complainant No.2 told to O.P No.1 that he would register the said tractor in Balasore R.T.O and came to know that the said tractor was already registered in the name of one Pramod Kumar Lenka, which is a false story. The distance between the Complainants’ house and the showroom of O.P No.1 is about 120 K.M and the Complainants are habitual litigants. All other allegation of the Complainants are out and out false. Hence, the case of the Complainants is liable to be dismissed with cost. Neither the O.P No.1 nor his Advocate was present at the time of hearing of this case.
4. Written version filed by the O.Ps No.2 to 4 through their Advocate denying on the point of maintainability, Consumer as well as the cause of action. The O.Ps No.2 to 4 have further submitted that the Complainant is not a Consumer as per Section-2(d) (ii) of the C.P Act. The Complainant No.1 approached the financer for grant of a loan, but due to lack of some relevant documents, the loan could not be sanctioned to the Complainant, but later on same was sanctioned to the relative of the Complainant on request, after fulfillment of all necessary formalities. The financer has role to play on the part of the down payment. In terms of the agreement, the Complainant is liable to repay the installments in time and it is the onus of the Complainant to register the vehicle and provide the RC copy to the financer. In addition, the Complainant has never suffered any financial loss or otherwise due to the staff of the O.Ps No.2, 3 & 4. If ever any loss has been incurred by him, it is only due to his own malicious deeds and mischievous attitude, for which these O.Ps can in no way be held responsible. These O.Ps have committed no deficiency of service and therefore, there is no reason for the Complainant to undergo any physical, financial and mental loss and agony attribute to these O.Ps. Extending financial help to a person in need cannot be construed as deficiency of service. Further, the financer plays no part in granting subsidy. Thus, the case of the Complainants is liable to be dismissed with cost.
5. Written version filed by the O.P No.5 through his Advocate, where it is submitted that this O.P is a finance company engaged into the business of retail financing to its prospective Customers. The Complainants have never approached this O.P for availing any assistance and has never availed any loan from this O.P to purchase the said vehicle. This O.P does not know the Complainants and has no knowledge about the averments mentioned in the complaint petition. Moreover, the Complainants have also not made any allegation against this O.P, hence this O.P No.5 has no obligations. This case of the Complainants is bad for non-joinder and mis-joinder of necessary Parties. Thus, the present case filed by the Complainant against this O.P is wholly misconceived, groundless, filed under mistaken understanding and unsustainable both in law and facts and accordingly, this case is liable to be dismissed against this O.P.
6. Though the O.P No.6 has appeared in this case through his Advocate, but has not filed his written version. The O.P No.6 is set ex-parte. Neither the O.P No.6 nor his Advocate was present at the time of hearing of this case.
7. In view of the above averments of both the Parties, the points for determination of this case are as follows:-
(i) Whether this Consumer case is maintainable as per Law ?
(ii) Whether there is any cause of action to file this case ?
(iii) Whether the Complainants are Consumers as per C.P Act ?
(iv) To what relief the Complainants are entitled for ?
8. In order to substantiate their claim, the Complainants have filed certain documents as per list, whereas the O.Ps have not filed any documents in their support. Perused the documents filed. It has been argued on behalf of the Complainants that the Complainant No.1 has purchased one Mahindra and Mahindra tractor from the O.P No.1 on payment of Rs.1,20,000/- (Rupees One lakh twenty thousand) only as earnest money and subsequently, it was financed by the O.P No.2 in the name of the Complainant No.2. The O.P No.2 has supplied relevant documents to the Complainant No.2, but subsequently, it was detected that the same vehicle was already registered in the name of the O.P No.6 and it was an old and painted vehicle. When the Complainants approached the O.Ps, they did not pay any heed to it, rather threatened to pay the loan amount, which is a clear deficiency of service and unfair trade practice on the part of the O.Ps. Strangely enough, the Complainants have not disclosed in their pleading about the registration number of the vehicle purchased, which was already registered in the name of the O.P No.6 and also it’s engine no. and chassis no. to identify the vehicle properly. The documents filed by the Complainants disclose about payment of Rs.1,20,000/- (Rupees One lakh twenty thousand) only by the Complainant No.1 to O.P No.1 vide Annexure-7 and payment of 3 installments @ Rs.12,660/- (Rupees Twelve thousand six hundred sixty) only by the Complainant No.2 to O.P No.2 vide Annexure-2 series. But, there is no document filed by the Complainants about payment of Rs.1,00,000/- (Rupees One lakh) only towards down payment to O.P No.2 as mentioned in their pleading, for which it cannot be believed. The sale certificate vide Annexure-3 discloses about the sale of the vehicle to the Complainant No.2. There are certain discrepancies about delivery of the vehicle, date of insurance and date of registration of the vehicle. The documents available in the case record disclose the date of sale was on 30.12.2014 to the Complainant No.2, date of delivery of the vehicle to the Complainant No.1 was on 25.09.2014 and the date of insurance was on 30.12.2014, but the date of registration of the vehicle was on 14.10.2014 in the name of the O.P No.6. So, if the vehicle was registered on 14.10.2014, how it was again sold to the Complainants in two different dates. Thus, the Complainants have filed this case praying for replacement of the alleged vehicle with a new one or refund of down payment and instalment amount of Rs.2,57,980/- (Rupees Two lakhs fifty seven thousand nine hundred eighty) only along with compensation and litigation cost. On the other hand, the O.P No.1 and 6 are absent at the time of hearing of this case as mentioned earlier. The O.P No.6 has not filed any written version and he has also set ex-parte. The O.P No.1 has filed his written version and the plea of the O.P No.1 is as per his written version. But, it is not clear that how he has supplied the vehicle to the Complainants in two different dates. It has been argued on behalf of the O.Ps No.2 to 4 that there is no deficiency of service on their part and they have duly financed for the vehicle without disclosing in details about the amount of finance and EMI and also the vehicle particulars. It has been argued on behalf of the O.P No.5 that he is no way connected in this case in reference to the Complainants and he has financed the vehicle registered in the name of the O.P No.6. However, there is no claim against the O.P No.5 and 6. While filing this case, the father’s name of the Complainant No.2 has not been disclosed for the reason best known to the Complainants.
9. So, now on careful consideration of all the materials available in the case record, I come to the conclusion that both the sides have suppressed certain material facts to give a clear picture about transaction of the vehicle and finance. However, the fact remains that the Complainant No.1 has paid Rs.1,20,000/- (Rupees One lakh twenty thousand) only to the O.P No.1 and the Complainant No.2 has paid 3 installments @ Rs.12,660/- (Rupees Twelve thousand six hundred sixty) only to the O.P No.2. So, there is clear deficiency of service and unfair trade practice on the part of the O.Ps No.1 to 4, for which they are jointly and severally liable for refund of the total amount received from the Complainants along with compensation of Rs.5,000/- (Rupees Five thousand) only and litigation cost of Rs.1,000/- (Rupees One thousand) only, subject to return of the alleged vehicle by the Complainants to the O.P No.1 within 60 days of receipt of this order, failing which it will carry interest @ 9% per annum on the total amount including the amount received from the Complainants along with compensation and litigation cost from the date of order till realization. Hence, Ordered:-
O R D E R
The Consumer case is allowed in part on contest against the O.Ps No.1 to 4 with cost and the case is dismissed on contest against the O.P No.5 and also dismissed on ex-parte against the O.P No.6 without cost. The O.P No.1 is directed to refund the amount of Rs.1,20,000/- (Rupees One lakh twenty thousand) only to the Complainant No.1 and the O.P No.2 is directed to refund 3 installment amount of Rs.37,980/- (Rupees Thirty seven thousand nine hundred eighty) only to the Complainant No.2, subject to return of the alleged vehicle by the Complainants to the O.P No.1 within 60 days of receipt of this order. The O.Ps No.1 to 4 are also jointly and severally directed to pay compensation of Rs.5,000/- (Rupees Five thousand) only and litigation cost of Rs.1,000/- (Rupees One thousand) only to the Complainants within 60 days of receipt of this order, failing which it will carry interest @ 9% per annum on the total amount including the amount received from the Complainants along with compensation and litigation cost from the date of order till realization. The Complainants are also at liberty to realize the same from the O.Ps No.1 to 4 as per Law, in case of failure by the O.Ps No.1 to 4 to comply the Order.
Pronounced in the open Forum on this day i.e. the 30th day of November, 2018 given under my Signature & Seal of the Forum.
