Karnataka

Chitradurga

CC/51/2013

Sri. Y. K. Manjunatha Shetty, S/o Late Y.S.B - Complainant(s)

Versus

The Managing Director Sonalika International Tractors Limited - Opp.Party(s)

25 Feb 2014

ORDER

COMPLAINT FILED ON : 17/07/2013

     DISPOSED ON: 25/02/2014

 

BEFORE THE TISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

CC.NO.51/2013 DATED: 25nd February-2014

PRESENT :-     SRI.V.H.RAMACHANDRA PRESIDENT                                      B.A., LL.B.,

                        SRI.H.RAMASWAMY                MEMBER

                                B.Com., LL.B.,(Spl.)

                SMT.G.E.SOWBHAGYALAKSHMI     MEMBER

                                B.A., LL.B.,

COMPLAINANT

Sri. Y. K. Manjunatha Shetty, S/o Late Y.S.B. Krishna Shetty, aged about 53 years, Agriculturist, R/o Yaraballi, Hiriyur Taluk.   (Rep by Sri. Abdul Jaleel Zulfaquar, Advocate)

OPPOSITE PARTY

1.The Managing Director Sonalika International Tractors Limited, VIII Chak Gujran post, Jalandhar Road, Hoshiarpur, Piplanwala-146022, Punjab. Represented by Managing Director.   2.The proprietor, Tejas Motors, Vinayaka Complex, Opp. State Bank of India, R.M.C. Road, Chitradurga-577 502. Represented by Proprietor. (Op No.1 and 2 Rep by Sri.C.J. Lakshminarasimha, Advocate)   3. The Branch Manager, Magma ITL Finance Limited, No.153/A, Dr. Parvathappa, Building, Beside Unity Health Centre, Convent Road, P.J. Extension, Davanagere-577 004.Represented by Branch Manager. (Rep by Sri. K.B. Chadappa, Advocate)

 

SMT.G.E. SOWBHAGYALAKSHMI, MEMBER.

ORDER

                This complaint has been filed by the complainant against the Opposite parties U/s 12 of the C.P. Act 1986, praying for the relief of replace and exchange the tractor with new one, in default to replace and exchange the Op has to pay a sum of Rs. 9,48,000/- along with interest @ 9% per annum from the date of purchase till its realization and for compensation for the mental shock pain and agony.

        2. The brief facts of the case are as follows:

        During the month of May-2011 the Sales Representatives of the Op No.1 and 2 approached the complainant and apprised about the better working conditions of the Sonalika World Trac D.I. 75 RX Tractors compared to other tractors available in the market, which is having good and durable engine and consumes 4 tyres will be supplied with tractor which will be used efficiently for a total 1000 hours and assured give free seven services at the spot itself and also apprised the fact of easily available loan with their tie up  finance company i.e., the Op No.3. That being inspired with the apprises, promises and assurance of the Sales Representatives of Op No.1 and 2, the complainant has contacted the Op No.2 he has assured the better working condition, services and less consumption of fuel by the Sonalika Tractors compared to other Tractors, the Complainant was agreed to purchase a Sonalika World Trac D.I. 75RX for a sum of Rs. 9,48,000/- and paid the down payment of Rs. 4,48,000/- and paid remaining Rs. 5,00,000/- through Op No.3 where in the complainant has raised the loan to purchase the above said tractor from the Op No.1 through his authorize service dealer i.e., Op No.2 both the Op No.1 and 2 interalia managed to get the remaining sale amount excluding the down payment made by the complainant from Op No.3 and after receipt of Rs. 9,48,000/- the said Tractor was delivered to the complainant on 15/07/2011 under the temporary registration No. KA-16-TRM No. S-2124. At that time the Op No.1 and 2 have issued operating service manual to the Complainant which is specifically of 18 months or 1500 hours of operation which-ever occur earlier for the products manufactured by them and for fuel injection pump and battery warranty will be up to 12 months or 1000 hours of operation whichever occurs earlier.

        3. The Complainant started to operate the above said Tractor for the purpose of cultivation and other allied occupation and noticed that the said Sonalika world Trac. D.I. 75 RX Tractor not working properly as assured by the sales representatives and also as promised by the Op.2 repetedly the complainant reported the problem to the Op.2, for the name sake the tractor has been inspected by the mechanic for 3 times and thereafter the complainant continue the operating the same and noticed that the tractor is consuming 8 liters of diesel per hour as such the complainant reported the same to the Op No.2 and the officials of the Op No.1 as and when they came to Davanagere and Chitradurga on each time the complainant has get assurance of detail checkup and to rectify the problem occurred in the tractor and its engine and in case of any manufacturing defect they promised for the replacement of tractor itself, but till this day nothing worthwhile had been done to rectify the massive problems of the said tractor, except the bare promises, in addition to that instead of supply of MRF tyres along with the tractor they have supplied some local tyres and they are totally burnt and  became unused within the span of the  tractor being run about 400 hours and it is noticed that all the free service coupons are being collected by Op No.2 at the time of delivery of the Tractor itself by playing fraud towards the complainant.

        4. Complainant further stated that, from the date of purchase of Sonalika world trac D.I.75 RX tractor complainant facing problems of high consumption of diesel, manufacturing defects, low quality of tyres, lack of availability of services, to operate the said tractor for one hour  the complainant has to spend double the amount, as such the complainant neither gets any income nor their being any expectation of income and the said tractor has been remained stagnant for last 8 months and he had operated the same with utmost difficulties for a total period of 400 hours.

        5. It is stated that the complainant with a great hope to earn and eking out his lively hood has purchased the above said Tractor but to his misfortune the Tractor supplied by the Op.1 and 2 is defective one. The tractor purchased by the complainant from the  Op No.1 has giving trouble from its beginning, the same has been bring to the notice of Op No.1 and 2 and the Op No.1 and 2 has attend the repair work, at the  time of repair the complainant has paid for the services rendered by the authorized service dealers, even though the said defects are happened in the warranty period, the above said tractor supplied by the Op.1 and 2  is defective one, even though repeated repairs the said tractor was not free from defects, and the Op.1 and 2 were was unable to detect the proper problems and fails to repair the defects occur in the above said tractor, as such there is a deficiency in service on the part of Op.1 and 2. From all the above circumstances the complainant has facing several problems and suffering from heavy loss which leads to mental shock, pain and agony the same cannot be compensated by any means.

        6. Complainant further stated that the Op No.3 has sent a letter to the complainant stating that the complainant has good track record of repayment hence the respondent No.3 has reduce in future monthly loan installments which is tune to Rs. 604/- per installment and which is in total of Rs. 27180/- on overall balance amount due to Op No.3.

        7. Complainant further stated that after learnt the malafides of Op have not rectified the defects carpeted in the said tractor, even though they have repaired the said vehicle several times, complainant has got issued a legal notice dated 25/04/2013 through his counsel and the same has been duly served upon the Op No.3, the Op No.2 has refused to take notice, even after issuance of notice the Op have not came forward to resolve the grievance of the complainant and also not replaced the tractor with new one which is free from defects, this clearly shows the deficiency in service on the part of the Op.1 and 2 towards the complainant. That after refused the notice of complainant by Op No.2 has issued a letter dated 18/06/2013 wherein he has admitted that he has attend the tractor several times, and noticed that the tractor consumes 6.25 liters of diesel per hour, but no action has been taken to rectify the defect, and in the letter he has first times, call upon the complainant that he has balance amount of Rs. 80,000/- which is pending from 10/07/2011 that after lapse of two years, the letter of Op No.2 is created and concocted for ran away from his duties and sending this letter without taking any action when the complainant approaches the Ops to rectify the defects occurred in the tractor, the letter of Ops No.2 clearly shows that the tractor delivered to complainant is defective one, it is issued just to harass the complainant and to restrain the complainant from taking action against the Op No.2 this act of Op No.2 shows that they have deficiency in service on their part towards the complainant.

        8. On the service of process, Op No.1 to 3 appeared through their counsel and filed their version and the Op No.1 and 2 they have neither denied the contents of para No.1 of complaint nor admitted, badly say that it is matter of record, further admitted the contents of para 2 further denied the assurance given that tractor was consume 4 liters of diesel per hour, further  denied the contents of para No.3,4 and 10 for want of knowledge, further denied the contents of para No.5,6,7,8,9,11,13,14,15, are wrong, and denied the same. Further the para No.16,17 and 18 by matter of records. Op.1 and 2. Further stated  that there is no defects in the tractor as alleged by the complainant and stated that average of the tractor depends upon the working conditions and working hours of the tractor, ability of the driver and driving skills, the average was also checked by the dealer to the satisfaction of  complainant  it is not manufacturing defect, even wrong usage and mishandling of the tractor amounts to the same for which either the Op No.1 or 2 are not responsible, the legal notice is not served on the Op No.2 the complainant has misused the word “refused” with the help of postal authorities, why the complainant has not served the legal notice personally, it clearly presumes that there is no any deficiency in service by Op No.1 and 2. Further stated  that the complainant has balance of Rs. 80,000/- as part due of sale consideration amount since from July 2011 to Op No.2 from which the Op No.2 has demanded orally, at last  seriously demanding from January-2013, the complainant has used technique to escape from liability and filed the complaint for unlawful gain with unnecessary allegation against the Op.1 and 2. Further stated  that if any manufacturing defect alleged by complainant he has to prove the same with an expert report or expert opinion and prays for dismissal of complaint under Section-26 of Consumer protection Act.

        9.  The Op No.3 has appear through his counsel and filed his version and the Op No.3 has admitted the contents of para No.1,3 and 10 of complaint and denied the contents of para No.2,4,5,6,13 of complaint, further the contents of para no.7,8,9,11,12, and Op.3 has no way concern and not aware of the facts, and prays for dismissal of complaint.

        10. Complainant himself examined as pw-1 by filing affidavit evidence and documents got marked as Ex A-1 to A-5.      

        11. On behalf of the Op.2 one Sri. S.V. Ujjanappa S/o Urushabendrappa partner of Tejas Motors, (Dealer of Sonalika international Tractors Limited) Chitradurga, examined as Dw-1 by filing affidavit evidence and documents got marked as Ex B-1 to B-5. On behalf of Op.3 one Sri. Ragavendra Rao S/o Ganesh Rao, GPA holder of Magma fin Corporation limited, and legal Office, Bangalore examined as Dw-2 by filing affidavit evidence  and not filed any documents. On his side.

        12. Heard the Arguments. And when case is posted to 20/02/2014 for Judgment. Later complainant Advocate filed  advance  application U/sen 151 CPC along with application U/o 6 Rule 17 R/w Section 151 CPC, and application U/o 11 Rule 14 and under U/o 12 rule 8 R/w section 151 CPC, and application u/o 1 Rule 10 R/w S 151 CPC with Vakalath filed in the Office on 19/02/2014. On 20/02/2014 “case is called out, counsel for Op.1 prayed for time call on by 3 p.m. for objection again called, counsel for Op.1 and 2 prayed for time finally for objection and hear on I.As. 4 to 7 by 21/02/2014. On 21/02/2014. Case is called out I.A. 4 allowed Sri. CJL Advocate for Op.1 and 2 filed common objection to I.A No. 5 to 7. Op.3 and counsel absent objections not filed arguments on IA nos 5 to 7 and main complaint heard case is posted for orders on 25/02/2014”.

        13. Complainant filed on IA.5 U/o 6 rule 17 R/w Section 151 CPC praying for permit the complainant to amend the application schedule amendment in the complaint by allowing application. Complainant sworn the application affidavit that he has purchased Sonalika World Trac D.I. 75 RX Tractor bearing engine No.4100TC13D241949 and chassis no.H2KDW2494941w for a sum of Rs. 9,48,000/- from Op no.2 and paid a sum of Rs. 4,48,000/- cash and reaming amount of Rs. 5,00,000/-has paid by obtain the loan from the Op.No.3 the Tractor has been delivered on 15/07/2011 at that time  the Op No.2 has not given any documents by saying that after receipt of loan amount they have got registered the said vehicle in Regional Transport Office then hand over the registration certificate but till this day neither given the documents pertains to Sonalika World         Trac D.I.75 RX tractor bearing engine no. No.4100TC13D241949 and chassis no.H2KDW2494941w now they have got registered the said vehicle. Further the above said tractor given is defective one, the same has been informed to the Op no.1and 2. Complainant further stated in his affidavit the application schedule amendment is very necessary to prove his case the proposed amendment is neither changes the nature of complaint nor it neither changes the nature of complaint no it change the cause of action. Further the proposed amendment is related to the case on hand for the proper adjudication of rights involved between the parties. Complainant further stated that he has got good grounds to successes in the above case and further he has to produced proper and cogent evidence in the above case. If the application is allowed no hardship will be cause to other side in the absence of this application and in the absence  of this proposed amendment. He is am unable to prove case and it leads to cause heavy and irreparable loss and injustice to him and pray for allow the I.A no.5.

14. Complainant filed I.A-6 U/o 11 Rule 14 and order 12 rule 8 R/w Section 151 CPC praying for to summon, order and notice to the Op.2 or his subordinate who is custodian of  records and documents to produce the application schedule documents and records of Sonalika world Trac D.I. 75 RX tractor belongs to complainant and allow the application. Complainant sworn in his affidavit that he has purchased the Sonalika World Trac D.I. 75 RX Tractor for sum of Rs. 9,48,000/- the same was taken delivery from Op No.2 on 15/07/2011 at that time Op.2 has not given any documents to him by saying that after receipt of loan amount they have got registered the said vehicle in R.T.O. then hand over the registration certificate to him but till this day neither given the documents pertains to Sonalika world trac D.I. 75 RX nor they have got registered the said vehicle. Complainant further sworn in his affidavit the application schedule documents are in the custody of op No.2 due request the Op No.2 have not came forward to hand over the application schedule documents to him the schedule documents are very necessary to prove the  these there documents are pertaining to the tractor purchased from op No.2 also it is related to the case on hand and those documents are part and parcel of transaction between him and op.2, these documents are very necessary for the proper adjudication of rights involved between the parties. If the application is allowed no hardship will be caused to other side. Complainant further sworn in the affidavit. If the application schedule documents are not summoned  and not marked as Exhibits on his side heavy and irreparable loss would be caused to him on the other hand no prejudice will be caused to other side and prayed for allow the application i.e. I.A-6.

15. Complainant filed on I.A.No.7 U/o 1 rule 10 R/w Section 151 of CPC praying for to permit the application schedule person to become one of the complainant in addition to the present complainant in the above complaint and allow this application. I.A VII application affidavit sworn by one Y Channmalla Setty S/o P. Krishnappa Shetty, Resident of Challakere. i.e application schedule person. He sworn in the affidavit that his son-in-law has filed the above complaint for the relief of replace and exchange of tractor with new one and his son-in-law has purchased Sonalika World Trac. D.I. 75 RX tractor for sum of Rs. 9,48,000/- from Op No.2 the tractor has been delivered to him on 15/07/2011 at that time the Op no.2 has not given any documents to him. It is further stated he has  I have booked the above said tractor in his name with op and applied for loan in PLD Bank, but the Bank authorities have not sactioned the loan amount in my favour, for that I have informed the above said fact to his son-in-law, he has informed the above said facts to the Op No.2  for that Op.2 has advised his son-in-Law to purchase the above said tractor in his name instead of my name of this applicant  and he make arrangement of Sanction of loan from op No.3 on the advice of Op.2 son-in-law has obtained the loan in his name and purchased the above said tractor but for the misfortune the temporary registration obtain in my name has handed over to my son-in-law by saying that immediately after receipt of loan they have got registration above vehicle in his name till then my Son-in-law has to keep the copy of temporary registration with him, but till this day the Op has neither got registered the above said tractor in the name of Son-in-law nor they have handed over the documents pertain to the above said tractor and drag on the matter by one way or the other. He has further sworn in the affidavit that “though I have not the proper and necessary party to this proceeding as the Op are fail to got registered the above said vehicle in the name of my son-in-law I have to brought myself in to the records of this case proceeding due to the reason that I have got temporary registration of above said tractor in my name. I have no any in dependent interest or right in the above case only for the proper adjudication of right I myself become one of the complainant in addition to the present complainant”. Hence this application if the application is allowed no hardship will be caused to other side. If not my son-in-law unable to prove his case and leads to cause heavy and irreparable loss and injustice to and prayed for allow this application i.e. I.A.7.

16. On the other hand Op No.1 and 2 filed common consolidated objection to I.A.s 5 filed by the complainant, Op No.1 and 2 stated that the above said applications filed by the complainant at this stage is not at all maintainable or tenable either in law or facts hence it is liable to be dismissed in limine with exemplary costs. Op no.1 and 2 further stated that the written arguments of both complainant and Ops have been on record. The oral arguments on both sides argued and then the case is posted for judgment. Now the above case is posted to 20/02/2014 for judgment. The complainant has filed the above applications with a malafide intention, the complainant has sworn the false affidavits and they are on unbelievable  grounds the same is far away from the truth. Op.1 and 2 stated that the complainant has concealed or suppressed the very material facts and filed this complaint on false and baseless grounds and allegations without having right to file  complaint since the complainant is not the R.C. owner of the said tractor and trailer as per their records Op.1 and 2 further stated that while filing the objections/versions by Op.1 and 2 they have been taken contentions that the complaint is bad for non-joinder of necessary parties to the complaint but the complainant has not rectified the same at the earliest opportunities. The application filed U/o 6 rule 17 CPC is highly belated one. This application is filed to fill up the laches and lacunas to the case on hand. When the case is stands posted for judgment when, the version, Evidence and Arguments completed, on both sides, then the complaint stands posted for judgment the said application is not at all tenable in the eye of law and it is not the stage to file these type of applications. The proposed schedule amendment as shown in the application will change the cause of action for the complaint basic structure of the complaint and nature of the complaint, hence the said application is liable to be dismissed with heavy cost.

17. Op.1 and 2 further stated that the application filed u/o 11 rule 14 CPC is also highly belated one, it is the duty of the complainant or owner of the said tractor and trailor to keep the same with them. The said alleged documents send to the finance Company and also to the complainant at the time of delivery of the said tractor and trailor. The said documents are not in the custody of the Ops 1 and 2.

18. Op 1 and 2 further stated that the application filed u/o 1 rule 10 CPC is also highly belated one. Some of the documents shows the complainant’s name and some of the documents shows proposed, implead person there is clear ambiguity regarding the owner of the said tractor and trailor. The complainant cannot seek or get any shelter by filing these type of applications that too at the stage of complaint is posted for judgment. The complainant has not utilized the opportunities at the earliest point of time. The complainant was not having right to file the complaint, then the complaint itself  is not maintainable either in law or on facts at the first instance, then how the application filed u/o 1 rule 10 CPC is maintainable now. The complaint itself is bad, since the complaint filed by the complainant at the earliest stage is not tenable.

19. Op.1 and 2 stated that moreover there are so many rulings or citations says that when the case is posted for judgment then the complaint or case cannot be  re-opened for any reasons the complainant has filed these applications even after getting knowledge of laches  and lacunas in the complaint. The complainant is not the R.C. owner of the said tractor and trailor, hence complaint is liable to be dismissed. The citation/Ruling in AIR 1964 SC page 993 also says that case cannot be re-opened when the case is stands posted for judgment and  op.1 and 2 prayed for dismissal of the applications filed by the complainant dated 19/02/2014 with heavy cost.

        20. Now the points that arise for our consideration for the decision of above complaint and IA-Nos. 5 to 7 are that :-

        Point No.1:- Whether the complainant proves that he has purchased a Sonalika World Trac D.I. 75 RX for sum of Rs. 9,48,000/- and paid down payment of Rs. 4,48,000/- remaining amount paid by the complainant from the Op.3 to the Op.1 and 2 after receipt of Rs. 9,48,000/- the said tractor was delivered to the complainant on 15/07/2011 under the temporary Registration No.KA-16-TRM Nos.2126?.

        Point No.2:- Whether the complainant proves that the purchased Sonalika World Tractor D.I.75-RX is having manufacturing defects and there is problem of low mileage, even after repeated repairs and service the said tractor was not free from defects and the Ops No.1 and 2 were unable to detect the proper problems and fails to cure the defects occur in the above said tractor, as such there is a deficiency in service on the part of Ops 1 and 2 Op.1 and 2 committed deficiency in service and played unfair trade practice?.

        Point No.3:- Whether the complainant proves that the complaint is maintainable?.

        Point No.4:- Whether the complainant proves that the application U/o 6 rule 17 R/w Section 151 of CPC filed by the complainant dated 19/02/2014 i.e. I.A-5 is maintainable at this stage?.

        Point No.5:- Whether the complainant proves that he is entitle for the relief of seeking direction to the Ops 1 and 2 to produce the documents as prayed in the I.A No.6, dated 19/02/2014?.

        Point No.6:- Whether the applicant proves that he is entitled for the relief of impleading himself as a one of the complainant in addition to the present complaint as prayed in the I.A No.7 filed u/o 01 R 10 of CPC dated 19/02/2014?.

Point No.7:- What Order?

        21. Our findings on the above points are as follows:-

        Point No.1:- Negative.

        Point No.2:- Negative.

        Point No.3:- Negative.

        Point No.4:- Negative.

        Point No.5:- Negative.

Point No.6:- Negative.

Point no.7:- As per final order?.

                        REASONS POINT NO.1, 2, and 3

        22. It is not in dispute that the Op.1 is the manufacturer of the Tractor and op.2 is the dealer of the tractor, and Op.3 is the financier of the tractor. It is not in dispute that the complainant was taken delivery of the tractor from Op No.2. It is not in dispute that the Op.3 is made formal party to this complaint. It is only in dispute that the tractor which was delivered by the Op.2 is defective one and the above said tractor is found manufacturing defects.  It is only in dispute that the Op.No.1 not cured  the defects found in the said tractor and Op No.1 and 2 have committed deficiency in their service and played unfair trade practice.     

        23. The complainant taken contention that during the month of May 2011 the Sales Representatives of the Op No.1 and 2 approached the complainant and apprised about the better working conditions of the Sonalika World Trac D.I. 75 RX Tractors compared to other tractors available in the market apprised and promised it is having good and durable engine and consumes 4 liters of diesel per hour irrespective of nature of the soil and the MRF tyres will be supplied with tractor which will be used efficiently for a total 1000 hours  and assured give free seven services at the spot itself and also apprised the fact of easily available loan with their tie up finance company i.e. the Op no.3. That being inspired with the apprises, promises and assurance of the sales representatives of Op No.1 and 2 the complainant has contacted the Op No.2 he has assured the better working condition, services and less consumption of fuel by the Sonalika Tractors compared to other tractors, the Complainant was agreed to purchase the Sonalika World Trac D.I. 75 RX tractor for Rs. 9,48,000/- from Op No.2 which has been manufacture by Op No.1 by availing loan of Rs. 5,00,000/- from the Op no.3 and paid down payment of Rs. 4,48,000/- the tractor was deliver to complainant on 15/07/2011 under the temporary registration No. KA-16-TRM No.S-2124, at that time the Op No.1 and 2 have issued operating service manual to the complainant which is specifically not belong to Sonalika World Trac DI 75 RX and given a warranty of 18 months or 1500 hours of operation which ever occur earlier for the products manufactured by them and for fuel injection pump and battery warranty will be up to 12 months or 1000 hours of operation whichever occurs earlier.

        24. The complainant further stated that he was started to operate the above said Tractor for the purpose of cultivation and other allied occupations and noticed that the said Sonalika World trac. D.I. 75 RX Tractor not working properly as assured by the sales representatives and also as promised by the Op No.2 repeatedly the complainant reported the problem to the Op No.2 for the name sake the tractor has been inspected by the mechanic for 3 times and thereafter the complainant continue the operating the same and noticed that the tractor is consuming 8 liters of diesel per hour as such the complainant reported the same to the Op No.2 and the officials of the Op No.1 as and when they came to Davanagere and Chitradurga on each time the complainant has get assurance of detail checkup and to rectify the problem occurred in the tractor and its engine and in case of any manufacturing defect they promised for the replacement of tractor itself, but till this day nothing worth-while had been done to rectify the massive problems of the said tractor, except the bare promises, further stated that they have supply of MRF tyres along with the tractor instead of that they have supplied some local tyres and they are totally burnt and became unused within the span of the tractor being run about 400 hours, and it is notice that all the free service coupons are being collected by Op No.2 at the time of delivery of the Tractor itself by playing fraud towards the complainant.

        25. Complainant further taken contention that from the date of purchase of Sonalika world trac D.I. 75 RX tractor complainant facing problems of high consumption of diesel, manufacturing defects, low quality of tyres, lack of availability of service, to operate the said tractor for one hour the complainant has to spend double the amount as such the complainant neither gets any income nor their being any expectation of income and the said tractor has been remained stagnant for last 8 months and he had operated the same with utmost difficulties for a total period of 400 hours. That after learnt the malafides of Op.1 and 2 that they have not rectified the defects crafted in the said tractor, even though they have repaired the said vehicle several times, complainant has got issued a legal notice dated 25/04/2013 through his counsel and  the same has been duly served upon the Op No.3, the Op No.2 has refused to take notice, even after service of notice the Ops have not came forward to resolve the grievance of the complainant and so also not replaced the tractor with new one which is free from defects, this clearly shows the deficiency in service on the part of the Ops towards the complainant. That after refused the notice of complainant by Op No.2 has issued a letter dated 18/06/2013 wherein he has admitted that he has attend the tractor several times, and noticed that the tractor consumed 6.25 liters of diesel per hour, this letter clearly shows that the tractor supplied by the Op no.1 and 2 has consumed more than 4 liters of diesel per hour, and it is defective one, but no action has been taken to rectify the defect, and in the letter he has first time call upon the complainant has to pay balance amount of Rs. 80,000/- which is pending from 10/07/2011 that after lapse of two years, the letter of Op No.2 is created and concocted for ran away from his duties and sending this letter without taking any action, when the complainant approaches the Ops to rectify the defects occurred in the tractor. Complainant further stated that  the letter of Op No.2 clearly shows that the tractor delivered to complainant is defective one, it is issued just to harass the complainant and to restrain the complainant from taking any action against the Op no. 2, this act of Op No.2 shows that they have deficiency in service on their part towards the complainant, the letter of Op No.2 dated 18/06/2013 clear by shows that  the tractor supplied by them has consume more than specified fuel and further they have stated that even they have repaired the tractor several times they have fail to rectify the defects occur in the said tractor, which is free from defects. On this point complainant has not produced the documents to prove his contention.

26. On perusal of the list of documents, filed by the complainant like Xerox copy of the Temporary Registration certificate, Legal notice Ex A-1 returned R.P.A.D postal cover with acknowledgment address to the Op No.2 i.e. Ex A-2 Three postal receipts and one acknowledgement served i.e. Ex A-3 on Op.3 letter issued by Op.2 dated 18/06/2013 to complainant i.e. Ex A-4 letter issued by the Op.3 dated Ist March 2013 to complainant, i.e. Ex A-5. On careful verifying the documents filed by the complainant it is not shows that the complainant is the owner of the vehicle i.e. Sonalika World Tractor D.I. 75 RX, Xerox copy of the temporary Registration certificate issued by the R.T.O. Chitradurga shows that the Tractor was registered  in the name of one Sri. Y. Channamallasetty S/o P. Krishnappa R/o Challakere town, and the above said documents shows the Engine Number 4100TLI3D 2,41949 chassis No. KZKDW-249494/w and it shows the temporary registration is valid 18/07/2011 to 17/08/2011. Tractor was temporary Registered on 18/07/2011 and the temporary Registration No.KA-16-/TRM Nos-2124/11-12. So, the complainant is fail to prove he is the owner of the Tractor bearing  temporary Registration No. KA-16-TRM-No-S-2124 as contended in the complaint. Complainant Advocate much argued that complainant paid down payment of Rs. 4,48,000/- to the Op No.1 and 2 remaining amount paid by the Op.3 and complainant paid the loan amount to Op.3 regularly. Op.3 has appreciated to complainant and wrote a letter  to complainant on Ist March 2013 i.e. marked as Ex A-5. On perusal of Ex A-5. It shows that Op.3 address to complainant but it is not discloses the vehicle number, chases No, Engine no, and it’s not discloses the loan amount so it is not helpful to the contention of the complainant. Complainant is the owner of the said tractor. On perusal of Ex A-4 document it is issued by op.2 it is also not discloses who is the owner of the said tractor it only shows that the letter addressed to the complainant and Op.2 demand the balance amount of Rs. 80,000/- and it show Op.1 and 2 attended the tractor for several times for minor repairs, regular services, fuel consumption complaints. It is not discloses the major defects in the Tractor and it is not helpful to the case of the  complainant. Complainant Advocate Argued that the Channamallashetty  is the father in law of complainant and he is old aged person, So complainant is look after the tractor and he has paid the entire loan amount and also the complainant himself run the tractor and correspondence with the Op.2.

        27. Complainant Advocate further argued that the tractor given low mileage 8 liters for one hour. The tractor fuel heavy consumption of diesel. Op.1 and 2 have fail to set right the defect  in the tractor and op.1 and 2 committed deficiency in service and Op.1 and 2 promised the complainant in case of any manufacturing defect replacement of tractor till this day nothing worthwhile had been done to rectify the massive problems of the said tractor except the bare promises. Op.2 has collected all the free service coupons at the time of delivery of the tractor itself by playing fraud towards the complainant and prays for allow the complaint and relied on the decisions as follows:-

AIR 2006 (NOC) 1238 (NCC).

= 2006 (4) ALJ 416.

M/s East India construction Co. V/s M/s modern Consultancy services and others.

(A)Consumer protection Act (68 of 1986)    Se 2(1)(d), 2(1)(g)-Consumer-Definition-Machine/equipment used for commercial or Industrial purposes –Manufacturing defect occurred during warranty period-purchaser would be entitled to file complaint under Act, being a consumer.

(B) Consumer protection Act (68 of 1986 S.2(1)(g) deficiency in service sale of equipment used for industrial purposes Manufacturing defects were noticed during warranty period-There was continuous breakdown of machinery despite repairs made from time to time service engineer-Manufacturing defects not rectified properly-It results in deficiency in service-Consumer directed to return equipment to dealer.

     Un reported decision, Dated 13^th November 2013, National Consumer Disputes Redressal Commission, New Delhi.

     Revision petition No.1471 of 2013

Toyata Kirloskar Motor Limited and another V/s Mr. Jayesh T. Tanna, and another.

Un reported decision dated 2^nd December 2013, National Consumer Disputes Redressal Commission, New Delhi.

1. Revision petition No.2790 of 2008

Hind Motor (I) Ltd. and another V/s Lakhbir Singh and another

2. Revision petition No.4345 of 2008

Tata Motors V/s Lakhbir Singh and another.

        28. The above said decisions are not properly applicable to the case of the complainant. Complainant has not produced the single documents to the show the above said tractor is suffering from manufacturing defect and also he has not produced the experts opinion to show that the tractor is having  manufacturing defect. There is no export opinion to show that the tractor is defective one and it is not properly working. So the above said decisions are not helpful to the case of the complainant.

        29. On perusal of the entire case records the purchased Tractor i.e. KA-16-TRM Nos.2124 purchased by one Channamallasetty S/o P. Krishnappa resident of Challakere from Op 1 and 2 and it is not regularly Registered the same till today. The above said Tractor temporary registration valid from 18/07/2011 to 17/08/2011 only for 30 days, from 2011 to August 2013 December the above said tractor is not regular registration. It is an illegal and it is against to the provision of M.V. Act 1988.

 30. On the other hand Advocate for Op No.1 and 2 argued that complainant has suppressed the material facts and filed false complaint and Op.1 and 2 denied the allegations made against the Ops in the complaint. There is no defect in the tractor as alleged in the complaint. The complaint has been filed only to harass these Ops for wrongful gain. The complaint is bad for non joinder of necessary party to the complaint, hence On this ground also the complaint is liable to be dismissed. Advocate for op No.1 and 2 further argued that the warrantee conditions of the said tractor has expired and completed on the date filing of the complaint. During the warranty period the Op No.1 has given good service and satisfactory service to the complainant without any defects as per the warranty and service manual.

31. Op No.1 and 2 Advocate further argued that the tractor of the complainant is still in good working condition and there is no defects in the same the complainant has filed this complaint on the false and baseless grounds. The oil consumption of the tractor depends upon working conditions and driving skills. It is further stated that the Tractor was checked in the presence of the complainant and the same was to the satisfaction of the complainant. Op No.1 and 2 further taken contention that the warranty on tyres is given by the tyre’s manufacturing Company and the same is also necessary party to this complaint. Advocate for Op No.1 and 2 much argued that there  is no any defects found in the tractor and the complainant has not produced any piece of document to show the defects found in the said tractor and it is not supported by the documentary evidence value of technically qualified persons and etc., and prayed for dismissal  of the complaint with heavy costs. In support of his contention and Arguments advanced by them op No.1 and 2 relied on the decision as follows:

I(1992) CPJ 279 (NC)

M/S E.I.D. Perry (India) Ltd V/s Baby Benjamin Thushra.

Consumer Protection Act, 1986-Sections 2(1)(i) and 13 (1) (o) and 13 (2)-Manufacturing defect Laboratory examination-Complaint before state Commission that when complainant used European style closet installed in her house manufactured by appellant if crumbled into numerous places resulting in multiple injuries and disabilities to the complainant-Allegation that collapse of the closet was due to manufacturing defect was upheld by the State Commission and it awarded compensation to the complainant-Appeat against the order of State Commission Broken places of closet not sent to laboratory for examination-Whether finding that closet suffered from manufacturing defect correct? (No).

1. 1992 CPJ 274 (NC)

Voluntary organization in Interest of Consumer Education V/s

M/s Maruthi Udyog Limited and others.

     Consumer Protection Act 1986-Section 2(1)(i)(g) (e) Defect and deficiency in service Complainant No.2 purchased a Maruthi car while complainant 2,1,3 were travelling by the vehicle there was an accident, they were thrown out of the van they received multiple injuries including compound factures-The vehicle overturned-Complainants alleged accident occurred due to poor quality of metal used in the rod, fulty structural design and the vehicle suffered form mechanical defect Manufacturer is alleged to be negligent while exercising quality control-Automotive Research association of India in its report stated no mechanical defect in the car bus been established as being responsible for the accident-Complaints failed to extablish thee was any defect or deficieancy in the van-The accident resulting in injuries and loss to the complainants was caused on accident of mechanical defect in the van-Whether complainant entitled to compensation? No.

AIR 1999 Supreme Court 3318

State of Himachal Pradesh Appellant V/s Jai lal and others Respondents.

(B) Evidence Act (1 of 1872), S. 45-Expert evidence-Must show that expert is skilled and has knowledge of subject.

Relevant para 17 and 18 . Section 45  of the evidence Act which makes opinion of experts admissible lays down that when the court has to form an opinion upon a point of foreign law or of science or art or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law science or art or in questions as to identity of handwriting or finger impressions are relevant facts. Therefore in order to bring the evidence of a witness as that of un-expert  it has to be shown that he has made a special study of the subject or acquired a special experience therein or other words that he is skilled and has adequate knowledge of the subject.

18. All expert is not a witness of act this evidence is renlly of advisory compactor The duty of an expert witness is to furnish the Judge with the necessary  scientific criterion for testing the accuracy of the conclusions so as to enable the Judge to form his independent Judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence if intelligible convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the baseless of his conclusions.  

I(1993)CPJ 195

The State Consumer Disputes Redressal Commission Delhi.

Consumer protection Act, 1995 Sections 2 (1) (d) (1), 2 (1) (g) and 2 (1)(o) Consumer defect Deficiency in service Car purchased for the purpose of company in which edible oil manufactured subsequently car developed certain defects. In the warranty given to complainant replacement of defective parts was allowed only within a period or twelve months or 16,000 kms whichever is earlier. Complaint filed after expiry of warranty period  whether complaint maintainable ? (No).

32. The above said decisions aptly applicable to the contention of the Ops. In this case complainant has not produced any expert evidence the Hon’ble Supreme Court held in above decision. Above decision of Hon’ble S.C. is binding on both parties.

        33. As per the decisions are of Hon’ble Supreme court we are not come to the conclusion that without any expert evidence or report, Op.2 has not committed deficiency in service or to the complainant. Complainant has fail to proves his case. Op.2 has not committed deficiency in service to the complainant so, complainant is not entitle for any reliefs. Hence by placing reliance on the above said discussion point No.1 and 2  is held as negative to the complainant.

34. The above decisions relied by the Ops are applicable to case in hand and support to the contention taken by the Op.1 and 2.

35. On perusal of the version, affidavit evidence and documents filed by the Op No.1 and 2 like true copy attested Xerox copy of satisfaction letter dated 14/06/2012, attested copy/True copy of Job cord No. 894 dated 28/12/2012, True copy/attested zerox copy of letter dated 18/06/2013 sent by Op no.2 to the complainant true copy of postal acknowledgement with RPAD receipt, true copy of warranty terms and conditions of the company operator manual service manual. The same were marked as Ex B-1 to B-5. On perusal of the Ex B-2, Job card dated 28/12/2012, it is clearly shows that the above said tractor of complainant was not disclosed the defects and also in that job card any of the defects observed. It’s shows that the tractor was not suffered any defects and also it’s disclosed the service given by the Ops 1 and  out of warranty and the tractor was working 315 hours and its shows name of Driver/owner Y.K. Manjunatha Setty, Yarabahalli, Hiriyur Taluk, and its shows the service Door step service one Mr. Ibrahim mechanic attended the service, one perusal of the Ex B-1 dated 14/06/2012, shows that the complainant written the letter addressed to the service Manager Sonalika Tractor, Karnataka, in his own hand writing the contents of relevant position as follows.

¸¹Ñ‘Ð: 13/06/2012 ½Ô·ÐÀѤР‘Ё»Ðº ÊÐÁþÊý …£º¦ÐÔ¤ý ¤Ñ·Ð Á¡¦ÐÔ ·°ÐÀÙÔþ¢ý ÀÐÔ³ÐÔê ¯ÀÙÔÊÙÓªý¤ýú ¤Ð–йѵР³ÙÓ¡Êýú ÀÙÖÓ©¤ýú ˽ñ¸ ¦ÐÔÀЧ·Ð ¤ÙÖÓ®ý ÀÙÔÚÄÙÓ¢ý ªÙÊýå Á¡¦ÐÔ·°ÐÀÙÔÓþ¢ý »Ðõ‘ѤР15-18 „¤ý.¼.Š. 10 ‘ÙŠ. 10 ‘ÙŠ. ¤ÙÖÓ®ý ªÙÊýå ÀЦѯ·ÐÔì 1ÅÓ©¤ý 6.5 ‘ÙÀЦý. ½¸·ÐÔì † ªÑô‘Ðå¤ý ¹ÐÔî 25 „¤ý.¼.Š. ÀÙӖзÐÅö ¹Ð®ÙË·ÐÔì 1 ÅÓ©¤ý 4.5 ‘ÙŠ. ½¸¤ÐÔ³Ðê·Ù. 14/06/2012¤Ð·ÐÔ ŠÀЦý.¿ »ÙÖöÓ ‡ÎÐÔÀÙÔ ÀЦѯ·ÐÔì 14/06/2012 ́·Ù ´ÏË·Ð Œ.«.Ë. ÀÐÔ³ÐÔê ³ÙÓ¡Êýú ˽ñ¸ ÀЖÐþ·ÐÀФÐÔ ¹ÐÀÐÔó ¡ÁÔÓº¹Ð ·ÐÔ ÊÐÔÀЦѤÐÔ 2 –ЁªÙ 40 ºÁÔÈÐ Š.¿. »ÙÖöÓ (2 ¾ÑϹРÀÐÔ¯‘Ù) ¹ÐÀÐÔó ŠÃö¤Ð ÊÐÀÐÔ‘ÐùÀÐÔ·ÐÅö 15 ÅÓ©¤ý ¯ÓÊÐÄý ªÑõ‘Ðå¤ý –Ù ÌÑ’·ÐÔì 2-40¤ÐÅö ‡ÎÐÔÀÙÔ ¡ÁÔÓ¹ÐÔ ÀЦѯ·ÙìÀÐÕ ‡Ï·Ð 2 –ЁªÙ 30 ºÁÔÈÐ 1 ÅÓ©¤ý ¯ÓÊÙÄý ÀÑ»ÐÊÐÔú ½¸¤ÐÔ³Ðê·Ù. 2-40 ºÁÔÈБÙÜ 12.6 ÅÓ©¤ý ‘ЛÑþ—¤ÐÔ³Ðê·Ù.

¹ÐÀÐÔ–Ù 1 –ЁªÙ–Ù 5 ÅÓ©¤ý ¯ÓÊÐÄý ½¸¤ÐÔ³Ðê·Ù. † ́·Ù ÊÐÁÓþÊý ÀЦѯ ªÙÊýå ÀЦѯ·ÐÔì †–Ð ÀЦѯ·ÐÔì ³Ðؼê‘ФÐÀÑ—¤ÐÔ³Ðê·Ù.

36. Complainant himself admits that the service satisfaction and complainant signed in that letter. So it clearly shows that the complaint of low mileage problem set right. Ex B-1 shows that the tractor free from defects As per Ex B-5 warranty to the tractor 18 months or 1500 hours of a operation whichever occurs earlier form the date of purchase. For the Fuel injection pump and battery warranty will be up-to 12 months or 1000 hours of operation, whichever occurs earlier.

37. On perusal of complaint as per the contention of complainant tractor purchased on 15/07/2011 complaint filed on 11/07/2013 after expiry of the warranty period.

   38. On careful verify the entire case records complainant has not proved that the is the consumer of the Op no.1 and 2. Complainant has not filed single document to show that the is the R.C. owner of the said tractor. The temporary registration No. KA-16 TRM-No-S.2124 is in the name of one Channamallasetty Resident of Challakere Town. From the  date of purchase of Tractor till this day complainant or Channamallasetty have not tried to get regular registration. Temporary registration valid only for 30 days within 30 days has to be registered as per provision of M.V. Act the tractor was not regularly registered. Complainant has not produced any document to show that the tractor is manufacturing defects and has not produced piece of document to show the defects found in the said tractor so it is clearly shows the complainant filed false complaint against to Ops. Complainant has no locus standy to file this complaint. We have observed stand to file this the following decision. Which reads as.

II (2013) CPJ 412 (NC)

National Consumer Disputes Redressal Commission, New Delhi.

Darab Singh and another V/s National Insurance Company Limited.

     Consumer Protection Act, 1986-Section 21 (b)-Insurance-Non-transfer of Insurance Certificate-Locus standi-Registered owner settled claim-Petitioner is neither the owner of vehicle nor is insured-original registration certificate and insurance certificate was not transferred and are still in the name of ‘HS’-claim was filed by ‘HS’ which was accepted and as such petitioner has no locus standi-Impugned order upheld.

 39. The above said decision applicable to the present case in hand as per the above said decision the complaint filed by the complainant is not maintainable and the complainant has fail to proved that the Op.1 and 2 have committed deficiency of service. Op.3 is the formal party to this complaint and there is no allegation against to the Op no.3. Hence the complaint against op.3 is dismissed.

        40. On perusal of the Hon’ble Supreme Court decision relied by the Op.1 and 2 we find some merits in the contentions of Op No.1 and 2 and Op.1 and 2 have not committed any deficiency in service accordingly point No.1 to 3 are held negative to the complaint.

                        Reasons on Point No.4

        41. It is not in dispute that the case is posted for judgment on 20/02/2014. Complainant filed the I.A No.5 in the Office on 19/02/2014 Complainant Advocate argued that the I.A-5 schedule amendment is very necessary to prove his case, the proposed amendment in neither changes the nature of complaint nor it change the cause of action, further the proposed amendment is related to the case on hand. Further the proposed amendment is related to the case on hand for the proper adjudication of rights involved between the parties and further argued that at any stage of the  proceedings I.A for amendment may be filed as per  the decision relied by the complainant advocate as follows.

AIR 2000 ALLAHABAD 90

     M/s Om Rice Mill, Jaspur and others V/s Banaras State Bank Ltd., Kashipur and another.

     (b) Civil P.C. (5 of 1908). O.6.R.17, o.9,R,7-pleadings Amendment of-expression “at any stage” connotation of _Argument of plaint at that stage-Can be allowed-Scope of O.6.R-17 and O.9.R.7 compared.

     (c) Civil P.C. (5 of 1908, O.7.R17- Amendment of plaint-Application filed as day fixed for judgment-Defendant objecting filling of objection at such stage-he could agitate the objection during bearing of application for amendment or before revisional Court.

ILR 2004 KAR 2571

H.Aziz Khan and others V/s Smt. Muniyamma and others.

     (A) civil procedure code, 1908 (Central Act no.5 of 1908)-Order 6 Rule 17-Amendment of plaint in appeal proposed amendment not having effect of making out a new case amendment sought by way of additional pleadings and an additional/alternative relief for recovery of possession-Held-Dominant purpose of allowing an amendment is to minimize the litigation. The power of the court to grant a prayer for amendment is quite wide and it can be exercised at any stage of the proceedings while it is true that amendment cannot be claimed as a matter of right and in all circumstance, the general rule is that the Court should be liberal while dealing with amendment applications.

Held:

     It cannot be disputed on the facts of the present case that the applicant is not seeking for an amendment which would alter the very nature of the suit or the cause of action. By its refusal of plaintiff would be driven to filing a fresh suit for possession thereby leading to multiplicity of proceedings and the possibility of the Court recordings conflicting decisions cannot be totally ruled out.

 

42. On other hand Op.1 and 2 filed common objection to IA-5,  Advocate for Op.1 and 2 argued that IA-5 is not maintainable and it not at all tenable in the eye of law and it is not the stage to file this I.A. The proposed schedule amendment as shown in the application will change the cause of action for the complainant basic structure of the complaint and nature of the complaint and prayed for dismissal of the IA-5 with heavy cost and advocate for op.1 and 2 relied on the decisions as follows:

 

(2009 (2) Civil LJ 608) Supreme Court

Vidyabai and others V/s Padmalatha and another.

Code of Civil Procedure, 1908, order VI, Rule 17-Amendment of pleading-writ ten statement filed and issues framed in the suit-Affidavits in lieu of evidence also filed-Amendment application moved thereafter-Date of framing of issues was the date of first hearing-Filing of affidavit in lieu of examination in chief of witness amounted to “commencement of proceedings”-Proviso appended to Rule 17 puts embargo on exercise of jurisdiction under the rule-Jurisdictional fact did not exist court had no jurisdiction at all to allow the amendment.

     (B) Constitution of India, Article 227-Judicial Review-Order on judicial review not showing that Trial Judge exceeded its jurisdiction in passing the order under consideration-Even no error of law committed by trail judge shown order on judicial review passed without application of mind-order on judicial review could not be sustained.

        2012 SAR (Civil) 169

     J. Samuel and others V/s Gattu Mahesh and others.

     Code of Civil procedure, 1908-Or. VI Rule 17-No application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial-The term “due diligence” determines the scope of a party’s constructive knowledge and claim-Suit for specific performance-W.S. was filed pointing cut the inherent defects, namely, absence of mandatory requirements of Sec.16(c) of S.R. Act on the ground that the same was missed due to typographical error-Trial court dismissed the application-High Court allowed the amendment-Hence this appeal-Omission of mandatory requirement running into 3 to 4 sentences cannot be typographical error-Whether the High Court was justified in accepting the explanation that it was a typographical error-Held: No, appeal allowed.

12. The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The Court’s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states that: no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due iligence, the party could not have raised the matter before the commencement of trial.

     (2012 )2) Civil LJ 833)

     Karnataka High Court

Smt. Shobha Surendar and another V/s Sri. C.R. Nagaraja Setty and others.

     Code of Civil procedure, 1908, order VI, Rule 17-amendment of written statement- Suit filed in the year 1999-Written statement filed on 23/02/2006-amendment of 2002 came into force on 01/07/2002-plaintiff’s evidence completed in the suit-Amendment application filed at the stage of evidence of defendant-Facts and events narrated for the proposed amendment already in the knowledge of defendant-Trial Court rightly held that the defendant failed to satisfy the requirement of due diligence as contained in the proviso-Thus, dismissal of amendment application and the finding of Trial Court suffered from no apparent illegality, error of lay or error of jurisdiction.

AIR 1964 Supreme Court 993 Arjun Singh, V/s Mohindra Kumar and others.

(b) Civil P.C. (1908)  O.9.R.7where the Court has adjourned the hearing of the suit ex-party meaning of entire hearing completed and court adjourning suit of pronouncing judgment-O O.9.R.7 does not apply-F.A.F.O No.116 for 1959 D/6/05/1963 (All) Reversed.

        43. The above said decisions are latest decisions of Hon’ble S.C. and Hon’ble High Court and the above said decisions are aptly applicable to the contentions of the op no.1 and 2. On perusal of the case records complainant has filed the complaint on 11/07/2013 the Op No.1 and 2 filed the version on 24/09/2013 evidence of the complainant and Ops have been recorded and the documents of both sides were marked and the written arguments of both the complainant and ops have been on record. The oral arguments on both sides heard and then the case is posted to 20/02/2014 for judgment. The I.A-No-5 filed by the complainant on 19/02/2014 at this stage I.A no.5 filed by the complainant is highly belated one and it is filed to fill up the laches and lacunas to the case on hand so I.A-5 is not at all tenable in the eye of law and it is not the stage to file this type of application. As per the Hon’ble Supreme  Court latest decision reported in 2012 SAR (civil)169 para 12 ready  para 12 page 173 and another decision reported of Karnataka (para-11 typed) it is clear from the proviso that no application for amendment shall be allowed after the commencement of recording evidence un less the court comes to the conclusion that despite due diligence the party could not take up the place  before the commencement of trail.

        44. In view of above decisions the I.A-5 filed by the complainant is not maintainable. Hence Point No.4 is held negative to the complainant.

                        Reasons on Point No-5

        45. It is not in dispute that the purchase of tractor on 15/07/2011 from Op.1 and 2 for sum of Rs. 9,48,000/-. Complainant filed I.A-6 praying for to summon and notice  to op.2 to produce the application schedule documents and records of Sonalika world Trac D.I. 75 RX tractor belongs complainant and prayed       for allowed the I.A-6 Op No.1 and 2 filed common/consolidated objections to IA No.6 Op 1 and 2 stated that the IA-6 filed by the complainant is also highly belated one. It is the duty of the complainant owner of the said tractor and tried to keep the same with them. The op.1 and 2 have already handed over the said alleged documents to the Finance Company and also to the complainant at the time of delivery of the said Tractor. The said documents are not in the custody of the Ops No.1 and 2. The Complainant advocate argued that at the time of delivery of the Tractor the op 1 and 2 have not given any documents to complainant by saying that after receipt of loan amount they have got registered the said vehicle in R.T.O. then hand over the R.C. to complainant but till today neither given the documents pertains to Sonalika  World Trac DI. 75 RX and further argued that the I.A-6 schedule documents are very necessary to prove the case of complainant. If the IA-6 is allowed no hardship will be caused to the other side and prayed for allow the IA.6 dated 19/02/2014.

        46. On verifying case papers, complaint and list of documents filed by the complainant like Xerox copy of the temporary registration certificate shows that on 18/07/2011 the tractor belongs to complainant registered by the R.T.O. Chitradurga in the name of Y. Channa Mallasetty S/o P. Krishnappa resident of Challakere. The above said vehicle temporary registration No.KA-16-TRM-2124. On perusal of the complaint page 2 para-3 complaint and affidavit evidence of complainant in page 2 para-4. “After receipt of Rs. 9,48,000/- the said tractor was delivered to the complainant on 15/07/2011 under the temporary registration No.KA-16-TRM-Nos.2124”.

        47. Complainant himself admits that the after receipt of Rs. 9,48,000/- the said tractor was delivered to the complainant on 15/07/2011 under the temporary registration No.KA-16-TRM-Nos.2124. So it shows that the op.2 has hand over the documents to the complainant without documents the vehicle was not registered after getting the temporary registration it is the duty of the complainant or the owner of the vehicle to regular registration. On perusal of the complaint and affidavit evidence filed by the complainant there is no allegations against the Op no.2 op has not  handover the documents pertaining to the vehicle belongs to complainant at the time of delivery so there is no merit in the contention of the complainant filing this IA-6. It is clearly shows that the complainant is not entitle for the reliefs as prayed in the IA-6 we have not hesitate to held Point no.5 is negative to the complainant.

Reasons on point No.6

        48. The applicant himself Channamallashetty filed this IA-7 U/O 1 R 10 of CPC prayed for to permit the applicant to become one of the complainant in addition to the present complainant in the above complaint the applicant sworn that his son-in-law purchased Sonalika World Trac D.I.75 Rx for sum of Rs. 9,48,000/- from Op.2 and the same was delivered on 15/07/2011 he further sworn in para 4 that he has booked the above said tractor in his name with Op.2 and applied for loan in PLD Bank, but the Bank authorities have not sectioned the loan amount in his favour  for that applicant has informed the same to his son-in-law, he has informed the above said facts to the Op.2 for that the Op.2 has advise applicant son-in-law to purchase the above said tractor in his name to purchase the above said tractor in his name instead of applicant’s name and he make arrangement of sanction of loan from Op.No.3 on the advice of Op.2 his son-in-law has obtain the loan in his name and purchased the above said tractor, but for the misfortune the temporary registration obtain in his name and has handed over to his son-in-law by saying that immediately after receipt of loan amount they have got registered the above said vehicle in his name till then his son-in-law has to keep the copy of temporary registration with him but till this day the Op has neither got registered the above said tractor in the name of his son-in-law, nor they have handed over the documents pertain to the above said tractor and drag on the matter by one way or the other. Applicant further sworn that though he is not the proper and necessary party to this proceedings as the Op are fail to got registered the above said         vehicle his name applicant to brought himself in to the records of this case proceeding due to the    reason that he   has  got temporary registration of above said   tractor     in

his name. Applicant  further sworn that he has no any independent interest or right in the above case, only for the proper adjudication of right he intends to become the one of the complainant in addition to the present complainant. If the IA-7 allowed no hardship will be caused to other side. If no his Son-in-law was unable to prove his case and it leads to heavy loss and prays for allow the I.A.

        49. On the other hand Op No.1 and 2 filed common objections and stated that at this stage the application is not at all maintainable or tenable either in law or facts and the I.A-7 filed is also highly belated one. Some of the documents shows the complainant name and some of the documents shows the proposed impleading person. There is clear ambiguity regarding the owner of the said tractor. The complainant cannot seek or get any shelter by filing these type of applications that too at the stage of complaint is posted for judgment. The complainant was not having right to file the  complaint, then the complaint itself is not maintainable either in law or facts at the first, instance, then how the IA-7 is maintainable  etc., and prayed for dismissal of the IA-7 with cost.

        50. On perusal of case papers and affidavit sworn by the applicant it shows that the tractor was Temporarily registered in the name of applicant and the temporary registration certificate in the name of applicant and also the same was to keep the copy of temporary registration with complainant. It shows that the tractor was registered in the name of complainant’s father-in-law i.e. Y. Channammallasetty. The tractor was temporarily registered on 18/07/2011. The complaint filed on 11/07/2013. Complainant has know ledge that the vehicle is in the name of his father-in-law at  the time of filings of the complaint list of documents filed by the complainant he has filed the Zerox copy of temporary registration certificate. So, It is clearly shows that complainant has knowledge that the vehicle is in the name of his father-in law. On perusal of the affidavit of the applicant, he sworn that in par-4 page-2. “I have not the proper and necessary party to this proceedings and also sworn that I have no any independent interest or right in the above case”. It show that the filing of I.A-7 is only to drag on the proceedings. That the vehicle purchased on 15/07/2011 the same was registered on 18/07/2011 complaint filed on 11/07/2013. The I.A-7 filed on 19/02/2014. So, I.A-7 is barred by limitation after lapse of 2 years I.A-7 implead application filed. So the application is not maintainable and belated one. It’s shows that the I.A filed by the applicant is just to support to his son-in-law and concocted story like applied for loan in PLD Bank, authorities have not sanctioned the case and for misfortune the temporary registration obtained etc., So the I.A No.7 filed by the applicant is not maintainable at this stage. Due to barred by limitation the entire fact known to the applicant and also complainant. It shows the filing the IA-7 is just to dragon the case. So, we have no hesitation to answer the point no.6 is held as negative:

        Point No.7: As discussed on the above points and for the reasons stated there in we pass the following order.

Order

     It is ordered that the complaint filed by the complainant u/s 12 of CP Act 1986 is here-by dismissed.

        It’s ordered that the I.A.No-5 filed by the complainant U/o 6 Rule 17 CPC dated 19/02/2011 is here by dismissed.      

        It is further ordered that the I.A No.6 U/o 11 rule 14 and U/o 12 rule 8 R/w 151 CPC dated 19/02/2014 filed by the complainant is here-by dismissed.

        It is ordered that the IA No.7 u/o 1 Rule 10 R/w Section 151 CPC dated 19/02/2014 filed by the applicant is hereby dismissed.

        Under circumstances parties are directed to bear their own cost.

        Accordingly complaint is dismissed.

(This order is made with the consent of President and Member after the correction of the draft on 25/02/2014 and it is pronounced in the open Court after our signatures.)

 

 

 

MEMBER                 MEMBER                        PRESIDENT

 

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