C.F. CASE No. : CC/10/102
COMPLAINANT : Sri Pran Krishna Ghosh,
S/o. Late Ganesh Ch. Ghosh
Vill & P.O. Putia, P.S. Ashoknagar,
Dist. North 24 Parganas
OPPOSITE PARTIES/OPs: 1) The Manager,
Mihindra & Mahindra Finance Services Ltd.,
Gateway Building,
Appollo Building,
Mumbai – 400001
2) Mr. Madan Chakraborty,
Proprietor of “Chakraborty Enterprise”
of N.H. 34, Palpara More,
P.O. Bhatjangla, Krishnagar,
P.S. Kotwali, Dist. Nadia
3) The Branch Manager,
Axis Bank, Nabapally Branch,
P.O. & P.S. Barasat, Dist. North 24 Parganas.
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 20th May, 2011
: J U D G M E N T :
In brief, the case of the complainant is that he purchased a tractor under the name & style ‘New Holland Tractor’ being Registration No. WB-51-5512, 5500 Model 55 H.P. from the show-room of the OP No. 2. It is his further case that in the advertisement the tractor was shown as new style with dual clutch with 16.9 rear tyre. But from the very beginning the tractor was defective in nature and oil consumption was very high. It was stated to him that at the time of purchase that by this tractor, per bigha of land would be cultivated on consuming only 1.5 litre oil, but practically 3 litres oil was consumed for the said cultivation of one bigha land. He time and again intimated the OP about this. The vehicle was also suffering from black smoke and gas was created in the engine. In spite of bringing this to the notice of the OP, the OP neither repaired the tractor nor removed its defect, as a result of which he had to suffer financial loss. So having no other alternative, he has filed this case praying for the reliefs as prayed in the petition of complaint.
The OP No. 1 has filed a written version in this case, inter alia, stating that the case is not maintainable in its present form and nature because the case is barred by the principle of res judicata as the complainant already filed the CF case No. CC/09/86 against this OP before this Forum and which was ultimately dismissed against him on 13.07.10. So the complainant has no cause of action against him and the same is liable to be dismissed.
OP No. 2 has filed a separate written version in this, inter alia, stating that as a dealer of tractor he sold the tractor to this complainant. As per terms of warranty he gave free service to the complainant as and when required. The complainant made allegation regarding use of oil consumption of the tractor, but after examining the same by his representative it was found that the tractor never consumed more oil than that of the promised oil consumption. In each and every occasion the complainant being satisfied took back the tractor after proper repair. He gave due service to the complainant as and when required during the warranty period. It is not the case of the complainant that the tractor is not in running condition. He has also denied that the crank and piston of the tractor were defective. It is his categorical submission also that the case is not maintainable in its present form and nature. There is no consumer and service provider relationship between the complainant and this OP. Besides this, there is no basis regarding the demand of compensation as made by the complainant. So considering all these, he has prayed to dismiss the case against him.
OP No. 3 has also filed a written version separately in this case, inter alia, stating that the case is not maintainable in its present form and nature as he is not at all a necessary party in this case. He also submits that this OP never financed the complainant in respect of the tractor being No. WB-51-5512. So the case suffers from the principle of mis-joinder of party and hence, it is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint and the written versions filed by the OPs along with the annexed documents filed by the parties and also after hearing the arguments advanced by the ld. lawyers for all the parties it is available on record that this complainant purchased one new Holland Tractor being registration No. WB-51-5512 from the show-room of the OP No. 2. The complainant’s specific case is that at the time of purchase an advertisement was made by the OP No. 2 to that extent that oil consumption of this tractor was less than other tractors and it was also told that to cultivate one bigha land it would consume 1.5 litre of oil, but practically it consumed 3 litres of oil for the said cultivation. Besides this, the vehicle suffered from black smoke and gas was created from the engine. Now the question is how far the complainant has proved his case against these OPs. Admittedly, this complainant has not filed any copy of advertisement so that the advertisement made by the OP No. 2 stating that the consumption of oil of the tractor was less than other tractors. Nor he has filed any document to show that it was stated to him that fuel consumption was 1.5 liter per bigha for cultivation, or actually it consumed 3 litres of oil to cultivate one bigha of land. No expert report is filed by him stating the alleged defect of the tractor or the consumption of oil also. He has relied upon the job card issued by the OP, but this job card does not bear any signature or seal of the OP No. 2 in which there is a mechanical report that the vehicle consumed 1800 gms of oil when it plied 10 minutes only and it consumed also 3 litres of oil to cultivate a bigha land. We have already discussed that this document neither bears the seal or the signature of the OP No. 2. Nor he has filed any document to show that this mechanic was engaged by the OP No. 2. Therefore, considering all these facts we hold that the complainant has failed to prove about the alleged consumption of higher oil than the required quantity by the tractor and its other defects also.
OP No. 1 is the financier from whom the complainant took loan to purchase the tractor. Against him he filed a case No. CC/09/86 before this Forum which was dismissed on contest on 13.07.10. So the OP No. 1 is undoubtedly an unnecessary party in this case. OP No. 3 has categorically stated to purchase the present tractor no loan was taken by the complainant from him. Complainant has filed a notice issued by the OP No. 3 dtd. 16.02.10 from which it is available that he took a loan of Rs. 5,15,000/- from the OP No. 3. But from this notice it was not clear that the said loan was taken for purchasing the disputed tractor in this case. Ld. lawyer for the OP has submitted that in the agreement there is a clause that disputes between the parties are to be referred to the arbitrator at his office. But violating that provision he has filed this case before this Forum. Ld. lawyer for the OP has cited a ruling from (2008) 1 WBLR (CPC) 455 where the Hon’ble State Commission has decided that “In case of hire purchase agreement the disputes cannot be decided in consumer Forum and the matter must be referred to the civil court.” The Hon’ble State Commission has relied on a decision of the Hon’ble National Commission in case of M/S Agarwal Dying Industries Vs. Rajasthan Financial Corporation & Others in which it was decided by the Hon’ble National Commission that “In a relation between the complainant and the OP being that of borrower and creditor complainant cannot be said to be a consumer in respect of loan transactions and cannot maintain complaint before the consumer Forum.”
In view of the above discussions and perusing the above cited rulings it is our considered view that the complainant has not become able to prove his case against the OPs. We do also hold that the case suffers from the principle of res judicata as CC/09/86 was filed by the present complainant against the OP No. 1 which was dismissed on contest on 13.07.10. Besides this he has not prayed for any relief against the OP No. 3 also which indicates that the case suffers from the principle of mis-joinder of party. As the complainant has not become able to prove his case, so he is not entitled to get any relief as prayed for. In result the case fails.
Hence,
Ordered,
That the case, CC/10/102 be and the same is dismissed on contest against the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
