By Sri. K. Gheevarghese, President:

The complaint filed under section 12 of the Consumer Protection Act 1986.
 

Complaint in brief is as follows:- The Complainant is a purchaser of a Tractor with compressor from the Opposite Party at the price of Rs.7,05,000/-. At the time of entering in to contract with the Opposite Party in the purchase of tractor, the Complainant made remittance of Rs.1,45,000/- in the 1^st Opposite Party's office. The vehicle was delivered to the Complainant in his residence while at delivery of the tractor it was not accompanied with the compressor. The instalments due from the Complainant towards the finance amount were remitted how ever the compressor was not given to the Complainant though demanded repeatedly. The monthly instalments made to be due from the Complainant when the Opposite Party were not ready to deliver the compressor. The purchase of the tractor by the Complainant was for his livelihood. But in the absence of the delivery of the compressor, the Complainant turned to be in difficult situation, not to use the tractor for engagement. The instalments were not remitted and in turn the Opposite Party seize the vehicle. There may be an order directing the Opposite Party to give the Complainant cost and compensation. The Opposite Party may be directed to give Rs. 7,05,000/- to the Complainant towards the compensation along with cost of Rs.50,000/-.

2. The 1^st Opposite Party filed version in short it is as follows:- The Complainant itself is not maintainable in the absence of any consumer relationship with the Complainant and Opposite Parties. The transaction was total commercial purpose which is beyond the purview of Consumer Protection Act. The Complainant was satisfied under terms in the purchase of the Mahindra 595 model Tractor. The selling price agreed with the party is Rs. 4,55,000/-. At the time of purchase the Complainant made an intension to the Opposite Party for the purchase of the compressor which costs Rs.2.5 Lakhs. The tractor with compressor costs Rs. 7,05,000/-. The delivery of the tractor was on 03.09.2006 for which Mahindra and Mahindra Financial Service financed Rs.5,60,000/-. The terms and conditions of the finance was such that the difference in value of Rs.1,45,000/- was to be paid by the Complainant. The Complainant was not in a position to find out money for the entire cost and upon request of the Complainant Rs.1,00,000/- in the way of cheque No. 118839 of Dhanalakshmi Bank dated 10.10.2006 was issued to the Complainant and Rs.5,000/- in cash was also given towards the registration expenses. The actual expense on the side of the Complainant for the purchase of the tractor is Rs.4,37,000/-. The Complainant has not paid any amount towards the cost of the Compressor and thereby no liability rest upon the Opposite Party. The 3^rd Opposite Party acted in collusion with the Complainant for illegal and improper enrichment drawing money from this Opposite Party. The complaint is nothing but the fruit of this act. If the Complainant desires for the purchase of the compressor the payment towards it is to be paid. This Opposite Party has not caused any inconvenience or any hardship to the Complainant. As a result the Complainant has not to be compensated for any kind of loss or hardship. The complaint is to be dismissed with cost.

3. The 2^nd Opposite Party filed version in short it is as follows:- This Opposite Party financed Rs.7,05,000/- for the purchase of the tractor exceeding a loan agreement dated 03.10.2006. The repayment of the finance could have to be remitted in 58 monthly instalments. The terms and conditions which are exemplified in the agreement are binding upon the Complainant. The 2^nd Opposite Party is vested with amble power to act upon the terms agreed. If any dispute or differences arising between the Complainant and the financier, it is to be sorted out or settled in arbitration proceedings. The sole arbitration was nominated and the proceedings were held in Mumbai. The interim order of the arbitrator was passed and the vehicle was sold in public auction. The surrendering of the vehicle by the Complainant himself subsequently lead to the sale of the vehicle in public auction. There is no deficiency in service on the part of the 2^nd Opposite Party and the complaint is to be dismissed.

4. The version of the 3^rd Opposite Party is that as an agent of the 1^st Opposite party to canvas business the Complainant was approached by this Opposite Party. Apart from the role of canvasing agent the 3^rd Opposite Party had no role or any connection with the agreement entered in to with the other Opposite Parties.

5. The points in consideration are:-

1. Whether any deficiency in service on the part of the Opposite Party in the transaction of the tractor and compressor?

2. Relief and cost.

6. Points No.1 and 2:- The Complainant and Opposite Parties filed proof affidavit. Exts.A1 to A11 and Exts.B1 to B8 are the documents considered in this case. The oral testimony of the Complainant and Opposite Parties are also tendered.

7. According to the Complainant the purchase price of the tractor and compressor was Rs.7,05,000/-. The price of the tractor alone was Rs.4,55,000/- and the compressor was in value of Rs.2,50,000/- in total the tractor cum compressor value was Rs.7,05,000/- Rs. 5,60,000/- was sanctioned by the financier. According to the Complainant the difference in value of the financed amount and actual cost was remitted by the Complainant. The fax copy of the receipt issued by the 1^st Opposite Party is marked as Ext.A11. The only documents which shows that the Complainant remitted the difference in value for the purchase of the tractor is this document, which was faxed on 30.06.2006. The Ext.A11 marked with objection is the page 2 of the document. The Complainant prays for an order to compensated the Complainant for the non delivery of the compressor. It is true that from Ext.A7 the tractor odometre showed a running distance of 209 Km. The Complainant was in use of the vehicle till the vehicle was surrendered and the period extends to 14 months. According to the 1^st Opposite party the Complainant had not paid the amount required for the purchase of the compressor. Ext.B4 is the account statement of the 1^st Opposite Party. It also shows that on 11.10.2006 Rs.1,00,000/- was given to the Complainant. In the oral testimony of the complainant it is also admitted that Rs.1,00,000/- was given in cash to him and it was due to the delay in delivery of the compressor. From the documents produced it is seen that the Complainant had not made any remittance towards the purchase of the compressor. The Complainant has not produced any documents to show that Rs.1,00,000/- received due to the non delivery of the compressor was under protest. Though the Complainant entered in to the terms of purchase of the tractor with compressor with the 1^st Opposite Party under finance of the 2^nd Opposite Party, the price required for the compressor is not seen remitted. The original of Ext.A11 issued by the 1^st Opposite Party was in possession of the Complainant which is not produced in this case. It is seen that the non delivery of the compressor to the Complainant in absence of the payment does not amount to deficiency in service and the point is found accordingly.

In the result, the complaint is dismissed no order as to cost.

Pronounced in open Forum on this the day of 31^st July 2010.

PRESIDENT: Sd/-

MEMBER : Sd/-

MEMBER : Sd/-

A P P E N D I X

Witnesses for the Complainant:

PW1. Shinoj. C.K Complainant.

PW2. Sivadas. Branch Manager

Witnesses for the Opposite Parties:

OPW1. Ajith. Z. Kureethadam. Business.

OPW2. Rajeesh Legal Executive, Mahindra & Mahindra.

Exhibits for the Complainant:

A1. Quotation. dt:20.9.2006.

A2. Delivery Order/ Vehicle Release Authorisation. dt:30.9.2006.

A3. Agreement of Hire Purchase.

A4. Repayment Schedule. dt:01.11.2006.

A5. (9 numbers) Cash Receipt.

A6 series. Certificate of Registration.

A7. Copy of Letter.

A8. Copy of Driving Licence.

A9. Copy of Driving Licence.

A10 series (4 numbers) Photos.

A11. (Marked with Objection) Copy of Receipt.

Exhibits for the Opposite Parties:

B1. Copy of Notice.

B2. Copy of Notice. dt:31.07.2007.

B3. (Marked with objection) Copy of Cash Book.

B4. Copy of Statement of Accountant.

B5. Copy of Power of Attorney

B6. Loan Agreement. dt:30.09.2006.

B7. Letter. dt:08.01.2008.