Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the petitioner being a cultivator wanted to purchase a combine harvestor for easy and quick harvesting the crops cultivated in his lands and for this the petitioner met with the op-2, who is authorized dealer of the manufacturer company, the op-1 . Theop-2 is a financer who arranged for payment for purchasing the combine harvestor with accessories. The op-2 arranged for financial assistance andop-3 also agreed to give loan and they executed loan agreement as usual. The petitioner through the financer op-3 ultimately purchased one combine harvestor machine with accessories in his own name. The petitioner being a prantik cultivator has purchased the said machine to save the expenses of agricultural labours and also to harvest the crops in proper time. The op-3 is a financer bank which bank paid the total amount of Rs.2503000/- including G.S.T to the dealer and the op-2 authorized dealer issued invoice and delivery challan on 28.8.2020. The combine harvesting machine being engine no.IJHM-103842, chasis no.PTC-052020549A. It was mentioned that the warranty period is one year for free servicing. The petitioner being Youngman with full of joy returned his house and on 22.8.2020 the op -2 delivered the said machine in the house of this petitioner as mentioned in the cause title of the petitioner. The men of authorized dealer came to the house of this petitioner to train him regarding operating system of said machine but the men of the op-2 failed to operate the said purchased machine and they went away. The op-2 authorised dealer requested the petitioner for waiting some few days, then the proprietor of authorized dealer the op-2 again sent his men but when they again failed and the op-2 informed the petitioner that he would try to replace the said machine. The op-2 intimated the petitioner that he informed the manufacturer of the machine regarding non-functioning of the machine and the company agreed to solve the problem very soon. After waiting some days the petitioner met with op-2 and requested him either replace the defective machine or return the purchase money to the petitioner. The petitioner’s desire not fulfilled but he is under obligation to repay the loan amount. Though the machine has not served the purpose of harvesting his paddy crops, yet he is under obligation to repay the EMI. The petitioner also informed the matter several times to the manufacturing company but they did nothing, on 13.7.2021, the op-1 by sending a letter intimated that their men found no fault in combine harvesting machine. Though the men of authorized dealer failed to operate the machine but the op-1 in his letter dated 13.7.2021 informed that the machine is working perfectly yet the petitioner is adamant to return the machine. The notice dt.13.7.2021 is self contradictory and they sent the same only to save himself from his unfair trade practice. The Engine of the combine harvestor is defective one from very beginning. The petitioner was ready to hand over the said defective machine to the authorized dealer but he refused to accept the same after giving receipt for replacement. The op-2 has no right to deliver mechanically defective machine to anyone like this petitioner. The op-1&2 are not diligent regarding their service other consumer and they are responsible for their unfair trade practice. They are reluctant to serve their duty to their consumer which amounts to deficiency of service and gross negligence to the consumer. The petitioner was ready and willing to repay the loan amount to the financier as per loan agreement. This petitioner is entitled to refund the money after returning the combine defective machine to the op-2 and the op-2 is under obligation to replace good operative combine machine in lieu of defective one.
Complainant filed the complaint petition praying direction upon the opposite party nos. 1 and 2 to replace the combine harvestor machine being engine no. LJHM 103842, Chasis no. PTC-052020549A, Model 76 H.P., 4 wheeler delivered on 22.8.2020 by new one or to refund the purchased money of Rs. 25,03,000/- with interest from 22.8.2020 till realization and to pay a sum of Rs. 2,00,000/- for mental agony and harassment and to pay the litigation cost of Rs. 20,000/-.
Defense Case:- The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant does not come under the purview of the definition of “consumer” in relation to the op no. 1 because the complainant has no relationship with the op no. 1 as consumer and seller and any cause of action to institute this suit would have arisen then it may arise by and between the complainant and op no. 2 with whom the complainant has relationship of consumer and seller. This case is non maintainable with the appropriate territorial jurisdiction because it has been written over the tax invoice that “all subject to Nellore jurisdiction” and it is also written clearly over the tax invoice that as and when the combined harvesting machine would have delivered to op no. 2 from that point of time the entire liability and responsility lies upon the shoulder of op no. 2 as it is clearly written in the tax invoice that “received the above goods to my entire satisfaction along with tool kit. I will be responsible for all kinds of damages, accidents and other losses after taking from the delivery company” and it is also written over the tax invoice under the head Terms and Condition that “goods once sold are not returnable. So the case is not maintainable in the eye of law and it should be rejected in limine.
The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the expert of op no. 2 went to the complainant’s house for repairing the machine and try to operate the harvestor machine but his men failed to operate the machine and then the op no. 2 arranged to get loan facility from Indusind Bank and the op no. 2 informed the matter to manufacturer for replace the machine or repairing the same. The op no. 2 is a dealer not a manufacturer so manufacturing defect would be cured only by manufacturer and the matter was informed to the op no. 1 by the complainant and the op no. 1 assured the complainant orally and the op no. 2 never neglected his duty or avoid his responsibility to his customer. So the case should be rejected with costs.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the answering opposite parties.
The answering opposite party nos. 1 and 2 filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are clubbed together and taken up for discussion jointly at first.
Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Goghat, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.
All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.
The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.
After going through the evidence on affidavit alongwith interrogatories and reply filed against the interrogatories by the parties of this case and also after making scrutiny of the documents filed by the parties and after examining the brief notes of argument this District Commission finds that in this case one copy of tax invoice has been filed by the OP and it has not been questioned by the complainant side wherefrom it appears that the complainant received the goods to his entire satisfaction alongwith tool, kit-I will be responsible for all kinds of damages, accidents and other losses after delivery from the company. This matter is clearly reflecting that the complainant has received the machine “Combine harvestor” in good condition and so the plea adopted by the complainant that the machine was defective from the beginning has no legs to stand upon.
Moreover the complainant has not taken any steps for examination of the said machine “combine harvestor” by any mechanical expert for getting expert opinion to show and / or prove that the said machine was defective and was not operating from the date of delivery of the said machine by OP-2. In the absence of expert opinion there is no scope before this District Commission to ascertain and / or determine that the said machine “combine harvestor” was supplied to the complainant by OP-1&2 in defective condition.
A cumulative consideration of the above noted discussion goes to show that complainant has failed to prove his case in respect of points of consideration no.4 & 5 which are vital issues for determination of the fate of this case.
In the result, it is accordingly,
Ordered
That this complaint case being no.C.C.-102 of 2021 be and the same is dismissed on contest.
No order is passed as to cost.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
