Hon’ble Mr. Haradhan Mukhopadhyay, President.
The financial dispute between the Complainant and the O.Ps dragged the Complainant to this Commission for redressal of his grievance. The concise fact as stated in the complaint is reproduced herein below to the effect that the Complainant Dhirendra Ch. Barman purchased one Tilling Tractor for earning his livelihood from the O.P. No.2 with a loan for Rs.5,99,176/- with interest @ 11.75% per annum vide loan Id No.4488 on 10.01.2011. Both the O.Ps promised to the Complainant for rendering proper service and as such the Complainant is a consumer under the O.Ps. Accordingly, the Complainant purchased the Sonalika Tractor from the O.P. No.2 Laxmi Trading Company. After the said purchase the Complainant having gone through the documents found that there was some discrepancy to the effect that he was supplied with 47HP engine power of the said tractor instead of 50HP engine. The Complainant immediately contacted with the Manager of O.P. No.1 & 2 his banker namely the Manager, Cooch Behar Co-operative Agricultural & Rural Development Bank (Bikash Bank). After purchasing the tractor the Complainant continued payment of loan against which the O.P. No.1 issued money receipt as stated in Para-7 from 07.012.10 to 30.10.17. Total amount of money liquidated is Rs.3,76,022/-. The Complainant has money receipt for Rs. 6 Lakhs whereas the remaining receipts were damaged due to flood. Despite receiving the loan instalment, the O.P. No.1 Cooch Behar Co-operative Agricultural & Rural Development Bank did not provide the loan account statement to the Complainant. Instead issued a rough balance and demanded Rs.7,01,909/- without considering Rs.6 Lakhs already paid. Therefore, there is inconsistency in the outstanding money. The O.P. No.1 bank unethically pressurised the Complainant to deposit Rs.1,75,477/- within 31.11.17 and the balance amount of Rs.5,26,432/- within four consecutive months without fail. The Complainant is willing to liquidate the actual outstanding money as per proper loan account statement. The Complainant deposited Rs.9,500/- lastly on 30.10.17 with a demand for loan account statement but the OP refused to give any such statement. Instead some of the staff of OP bank threatened the Complainant that if the arrear loan amount is not paid the tractor would be repossessed shortly. The Complainant therefore served a legal notice on 27.11.17 which the OP received on 28.11.17. The cause of action arose on November, 2017 and on subsequent dates. The Complainant therefore prayed for an award to change the tractor as per specification of tax invoice and direction to O.P. No.1 issuance of loan account statement, Rs.50,000/- from the O.Ps for unfair trade practice, Rs.40,000/- towards compensation for mental pain and agony and Rs.5000/- towards litigation cost.
The O.P. No.1 initially appeared in this case but subsequently decided not to contest the case. Accordingly, as per Order No.04 dated 13.04.18 the case is decided to be heard ex-parte against the O.P. No.1. The O.P. No.2 filed written version in this case denying the allegations against them.
The positive defence case of O.P. No.2 in brief is that the O.P. No.2 is a registered dealer who maintains all the documents and runs his business systematically. The said tractor was delivered to the Complainant as per the quotation and specific model. Subsequently, the RTO, Cooch Behar registered the said vehicle. The Complainant after accepting the same filed this case for illegal gain to avoid the loan payment and lingering the process of loan payment. The O.P. No.2 claimed that the case is liable to be dismissed with cost.
The contention of O.P. No.3 in brief is that the O.P. No.3 is the manufacturer of Sonalika Brand Tractor and deals with his dealer on principal to principal basis. The tractors are sent to the dealers on payment basis. The O.P. No.3 never deals with any customer directly. So, the relation between O.P. No.2 and O.P. No.3 is buyer and seller. No documents has been filed by the Complainant that any tractor was purchased by him. The rule of “caveat emptor” is fully applicable in this case. It is denied that wrong tractor was supplied to the Complainant. The Complainant filed this case after seven years due to failure to pay the loan instalments. There is no unfair trade practice or deficiency in service in this case. The Complainant is not entitled to get any relief. Both the O.P. No.2 & 3 claimed that the case is liable to be dismissed with cost.
The question of fact and law involved in this case demand for ascertainment of the following points for proper adjudication of this case.
Points for Determination
- Is the case is maintainable in its present form and prayer?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
The Complainant filed the case claiming relief of different kinds. The Complainant also claimed the main relief against O.P. No.2 to change the disputed tractor and give loan account statement by the O.P. No.1 and other reliefs against the O.Ps.
The Complainant specifically stated that he purchase Sonalika Tractor for maintaining his livelihood.
Except some evasive denial the OP could not produce any documents or lead sufficient evidence to discard the contention of the Complainant. It is further found from the case record that as per order No.04 dated 13.04.18 the case has been decided to be heard ex-parte against O.P. No.1 and as per Order No.41 dated 19.05.2022 the case is also decided to be heard ex-parte against O.P. No.2. So, the defence plea taken by the OP seems to be not duly established.
The O.P. No.3, International Tractor Limited contested the case. After perusing the pleadings and the evidence on record it transpires that no specific relief is claimed by the Complainant against the O.P. No.3.
The O.P. No.1 & 2 denied the allegations against them in their written version but could not establish the grounds stated as to the non-maintainability of the case through cogent and succinct evidence.
The Complainant categorically stated that he is a cultivator who purchased the disputed tractor from O.P. No.2. The pleadings clearly disclose that the Complainant is a consumer under the C.P. Act. The relief claimed is well within the pecuniary jurisdiction of this Commission.
Having considered all the criteria and material available in the case record, the Commission comes to the findings that the present case is maintainable in its present form and prayer.
Point No.1 is accordingly decided in favour of the Complainant.
Points No.2 & 3.
These two points have very close nexus between them and as such these are taken up together for brevity and convenience of discussion.
It is the admitted fact that the Complainant purchased one Sonalika Tractor.
The OP challenged the purchase on the ground that the Complainant could not produce sufficient documents to show that purchased the tractor.
From the case record it is found that the Complainant filed some documents and proved it in course of trial. Annexure-2 is the tax invoice of Laxmi Trading Company in respect of account of Dhirendra Ch. Barman and the description of article purchased is Sonalika Tractor Model DI47RX Horse power 50HP for a sum of Rs.5,66,644/- financed by Cooch Behar Co-operative Agricultural Development Limited. As per Annexure-A the said Cooch Behar Co-operative Agricultural Development bank issued a letter with subject delivery order alongwith draft/cheque wherein the Chief Administrative Officer of O.P. No.1 bank issued the letter on 10.01.11 to the O.P. No.2 Laxmi Trading Company stating inter alia to arrange to deliver Sonalika Tractor with HP50 with all accessories as per quotation in the said letter. The specimen signature of the Complainant Dhirendra Ch. Barman is duly attested. Annexure-A1 discloses that the loan was sanctioned @ 11.75% for a sum of Rs.5,99,176/- at a monthly instalments of Rs.5848/-.
The Complainant categorically stated in Para-7 of the complaint that he paid Rs.3,76,022/- for the said tractor in different instalments.
There is nothing in the case record to discard the said evidence of the Complainant. Annexure-B1 also discloses the name of the buyer as Dhirendra Ch. Barman. Annexure-C proved the certificate of registration.
Annexure-E discloses about payment of Rs.1000/- to the O.P. No.1 and further payment of Rs.1,33,022/- on 06.01.11 by the Complainant to the O.P. No.1 bank Rs.8000/- on 30.03.11 in this manner all the E series documents proved the payment of different money to the O.P. No.1 bank as per the statement of Para-7. Annexure-G series established that the legal notice was issued to the OP which was received by them.
The OP could not prove any document to show that the statement of loan was supplied to the Complainant at any point of time. Actually the plea taken by the O.P. No.2 in their written version could not be established through valid document, despite filing evidence on affidavit. Therefore, the actual arrear amount of loan could not be brought to the notice of the Commission in course trial of this case.
The case record further shows that despite filing written version the O.P. No.2 could not lead sufficient evidence. On the contrary as per order No.41 the case is decided to be heard ex-parte against the O.P. No.2. The O.P. No.2 did not advance any argument nor did prove any document in support of their contention or to discard the case of the Complainant.
The documents filed by the Complainant and their specific evidence clearly show that he has already paid a sum of Rs.3,76,022/- out of the borrowed amount of Rs.5,99,176/-.
It is further evident from the document that the Complainant is willing to repay the outstanding loan.
The Complainant also categorically stated in evidence that he deposited Rs.6 Lakhs but due to flood in their area the receipts were damaged.
The O.P. No.1 & 2 did not put any questionnaire to the Complainant regarding the said specific evidence or denying the said fact. So, the said evidence of the Complainant stands un-discarded.
The case record further discloses that the O.P. No.3 put some questionnaire to the Complainant on 20.01.20. As per question No.3 “you purchased the tractor directly from dealer O.P. No.2”? The Complainant answered that he purchased the said tractor from O.P. No.2. As per question No.4 “you did not pay any amount to O.P. No.3”? The Complainant answered that the payment had been done by O.P. No.1.
As per question No.06 the O.P. No.3 questioned “that you did not file any complaint with OP with regard to working of the tractor in the past seven years”? The Complainant answered that after purchasing the tractor upon scrutiny it was found that O.P. No.1 did not provide 50HP. Thereafter, the Complainant made several contact with O.P. No.1 & 2. Prior to filing of this case the Complainant served a legal notice through his Advocate for settlement of his grievance.
Answer given in cross-examination by a witness has some special significance and effect. Thus after considering the answer to the questionnaire as well as the documentary evidence it stands well established that the Complainant took necessary steps for redressal of his grievance. Despite his illness to repay the loan the OP appears to have not applied the statement of loan account for which the Complainant failed to repay the loan.
It is also evident that the specific plea of the Complainant that the money receipts for payment of loan were damaged due to flood. The said evidence could not be discarded by the O.Ps.
Ld. Defence Counsel for O.P. No.3 argued that O.P. No.3 is an added party. The main allegations are against O.P. No.1 & 2. The O.P. No.3 had no contact with the Complainant nor is the Complainant their consumer. The O.P. No.3 is neither a financier nor a dealer of the Complainant. Dealer sales goods from principal to principal. The O.P. No.3 claimed that he should be discharged from this case.
Evidence in the case record clearly established the case of the Complainant. Despite filing written version the O.P. No.2 finally decided not to contest the case and as such the defence plea of both O.P. No.1 & 2 could not be established nor could the specific case of the Complainant be discarded. Thus the demeanour of the O.P. No.1 & 2 towards the Complainant tantamounts to deficiency in service.
Having assessed the entire evidence in the case record and the observation made herein above the Commission comes to the finding that the case of the Complainant stands established up to the hilt.
Points No.2 & 3 are accordingly answered in favour of the Complainant.
Consequently, the complaint case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No. CC/11/2018 be and the same is allowed on contest with cost Rs.5,000/- ex-parte against O.P. No.1 & 2 and dismissed on contest against O.P. No.3.
The O.P. No.2 is directed to change the tractor of the Complainant as per the specification in tax invoice after payment of the balance loan money on the basis of actual loan account statement within 30 days from the date of Final Order.
The Complainant do get an award for Rs.50,000/- for unfair trade practice and deficiency in service and Rs.40,000/- towards compensation for mental pain and agony against the O.P. No.1 & 2 and Rs.5,000/- towards litigation cost. Both the O.P. No.1 & 2 are jointly and/or severally liable to pay Rs.95,000/- (Rupees Ninety five thousand only) to the Complainant within 30 days from the date of Final Order to the Complainant failing which the entire awarded money shall carry an interest of 8% per annum from the date of order till the date of realisation.
The Complaint case is accordingly disposed of.
D.A to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
