Before the Hon’ble President,

District Consumer Disputes Redressal Forum,

Uttar Dinajpur at Raiganj.

(Super Market Complex, Block – 1, 1st Floor.)



Consumer Case No.: 45 / 2007.

Date of filing : 20.08.2007.

Date of final order : 23.03.2009.



PRESENT



A. Sri Saurish Chakraborty President.



B. Smt. Swapna Kar Member.



C. Sri Swaraj Kumar Biswas Member.







Shankar Das,

S/o – Harendra Nath Das,

Vill. - Milanpally,

P.O. and P.S. – Islampur,

District – Uttar Dinajpur. Complainant.



Vs



1. Shankar Auto Centre,

Authorized Dealer,

Mahindra Tractor Division,

Siligurimore,

P.O + P.S. - Raiganj, Uttar Dinajpur.



2. Mahindra & Mahindra Finance Limited,

2nd Floor, Sadhana House,

570 P.B. Marg, Worli, Mumbai,

Mumbai – 400 018. Opposite Parties.



Judgment

Date: 23.03.2009.



Petitioner Shankar Das by filing a petition of complaint under section 12 of the Consumer Protection Act, 1986 on 20.08.2007 has prayed for passing an order to replacing a new Rotovator in place of the old defect and non-functioning Rotovator and a sum of rupees 8,00,000.00 as award for compensation and litigation cost of rupees 10,000.00 and any other relief and relieves as the Forum deem fit and proper.



In a short, the complaint case is that he is a handicapped, unemployed Youngman, purchased one new Mahindra Tractor along with a Rotovator on 24.11.2005 from authorized dealer Shankar Auto Centre at Siliguri More, Raiganj, Uttar Dinajpur being Engine No. CNSF 3812, whose total price of rupees 5,50,000.00. In which, petitioner himself paid of Rs. 2,00,000.00 out of Rs. 5,50,000.00 and rest of Rs. 3,50,000.00 including the price of Rs. 90,000.00 of Rotovator was financed by Mahindra and Mahindra Finance Limited on behalf of the petitioner as a loan money.



Petitioner purchased this tractor for cultivation. But according to him the said Rotovator of this Tractor was defect and non-functioning since the date of purchase. As such, petitioner Shankar was send several reminder to Malda branch office of Mahindra and Mahindra Finance Limited and as well as to the authorized dealer Shankar Auto Centre of Mahindra Tractor Division about all the matter regarding Tractor and defective Retovetor and concerning financial matter but no action has been taken neither the Mahindra and Mahindra Finance Limited nor by the authorized dealer.



When he purchased the Tractor, it was the season to cultivate of potato. So, he loss almost rupees 60,000.00. Moreover, petitioner lastly paid his installment on 16.11.2006 by cash receipt No. 30400612 to Mahindra and Mahindra Finance Limited. As a result petitioner is facing huge financial loss due to this negligence. So, it will be proved that there is a deficiency in the service from the opposite parties.



In view of the above circumstances the petitioner has filed this petition with the aforesaid prayers.



O.P. No. 1 and 2 by filing their separate written version respectively on 30.09.2008 and 29.05.2008 have contested this case, denying inter alia, all the material allegations against them; contending therein that the case is not maintainable in its present form and law and far defect of non-joinder and mis-joinder of necessary parties.



Opposite party No. 1 mentioned in their written version that the Tractor and Rotovator was not defect but getting the information from the petitioner they send two technician for repairing and it was found by them that due to improper use of shaft by the complainant the same could not be set with the tractor. Although there was no warranty or guarantee relating to the Rtovator but the opposite party to keep him his good will requested to the complainant to refund the old Rotovator, but after a long period complainant gave the said old shaft to the opposite parties and opposite parties replaced it by new one.



Accordingly to the opposite party No. 1 actual fact is that complainant purchased the Tractor with the financial assistance of opposite party No. 2, Mahindra and Mahindra Finance Limited and subsequently he failed to repay the loan amount. For that reason he filed this case to save himself. As such opposite party no. 1 prays before the Forum to be dismissed the case with cost.



On the other hand opposite party No. 2 mentioned in their written version that this “opposite party No. 2 is a finance company which is engaged in the business of providing financial facilities” only and do not any relation with the supplier of the Tractor. So, complainant is not entitled to get any relief as prayed before this Forum and this case should be dismissed against the petitioner.



Decisions with reasons: -



Here, in the discussion following hereunder we shall try to see if the allegation of deficiency of service leveled against the opposite party No. 1 by the complainant carries any weight or not.



Before beginning it is necessary to say that complainant has made claim only against opposite party No. 1, and not against opposite party No. 2. Actually, opposite party No.2 has been the financer facilitating the complainant to purchase the Tractor including accessory kits like Retovator, hood, case wheel etc.



Now, from the case of the parties (complainant and opposite party No. 1) we do find that all disputes are over the Retovator supplied along with the Tractor by opposite party No. 1.



Allegation is that the Retovator was defective; it mismatched the shaft of the Tractor purchased by the complainant, causing thereby heavy loss. It has been further contended by the complainant that he has made several correspondence with the opposite party No. 1 asking for repairing or replacing the defective Retovator. Some of the correspondences (Xerox copies) have been filed in course of hearing. Here, there is a document apparently been issued by the opposite party No. 1 asking the complainant to produce his Retovator for repairing in the premises of the office of the opposite party No. 1 (vide letter, dated 26.08.2006 issued by the opposite party No. 1 to the complainant).



Second document is a receipt, dated 01.09.2006 granted by the opposite party N o. 1 on receipt of a Retovator Shaft. The receipt discloses the claim was made by the complainant within the warranty period of the Retovator. Now, we get at least it admitted that Retovator purchased by the complainant from the opposite party No.1 was received within warranty period for taking action. Complainant has alleged that no action has been taken from the side of the opposite party No. 1. Opposite party No. 1 from the other hand asserted that Retovator was replaced. But though there is evidence of receipt of Retovator in question within the warranty period, there is no evidence however remote to say that the said Retovator was actually replaced. No document has also been filed either to show that the Retovator was actually replaced. No one from the opposite parties’ side is coming before this Forum to say that the said Retovator as been at all replaced.



Now, taking all the aspects of the case along with versions of both sides and certain documents filed into consideration, we are of the view that the complainant has drawn the attention of the opposite party No. 1 to the defective Retovator within the warranty period of the product, and opposite party No. 1 received the same for necessary action, but finally, no action is taken by it.



In view of all these this Forum holds and orders: -



that complainant is entitled to get the Retovator in question replaced by the opposite party No. 1.



secondly, complainant is also entitled to get Rs. 20,000/- as compensation from the opposite party No. 1.



thirdly, complainant is also entitled to get litigation cost of Rs. 500/- from the opposite party No. 1.



the compensation amount and the litigation cost must be paid by the opposite party to the complainant within 3 months from the date of this order i. d. an annual interest at the rate of 9 percent shall be levied on the awarded amount.



as no specific relief has been asked for against opposite party No.2, the case against opposite party No. 2 is dismissed on contest with cost of rupees 200/-.



Let true photo copies of this final order be supplied to the parties free of cost.







Sd/-………..……….. Sd/-……………….. Sd/-………………

Swaraj Kumar Biswas Swapna Kar Saurish Chakraborty

Member, Member, President,

D. C. D. R. F., D. C. D. R. F., D. C. D. R. F.,

Uttar Dinajpur, Raiganj. Uttar Dinajpur, Raiganj. Uttar Dinajpur, Raiganj.