Orissa

Kendujhar

CC/49/2015

Sri Khetramohan Mahanta - Complainant(s)

Versus

1. Jayashree Automobiles - Opp.Party(s)

Sri Jagajjita Dash & Associates

17 Mar 2017

ORDER

IN THE COURT OF THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KENDUJHAR

CONSUMER COMPLAINT CASE NO. 49 OF 2015

    Khetra Mohan Mahanta,

    C/o- Kirtana Mahanta,

    At- Musapada, P.O- Brahmanideo,

    Dist- Keonjhar- 758030……………………………………………………………...Complainant

                          Vrs.

1. Jayashree Automobiles,

    Authorized dealer of Mahindra &

    Mahindra Ltd. (Swaraj Division),

    At- Nihal Singh Chhak, Dhangarpada,

    P.O- Old-Town, Dist- Keonjhar- 758002

2. Mahindra & Mahindra Ltd.

    Tractor Division, 3^rd Floor,

    Mahindra Tour, Rasulgarh,

    Bhubaneswar

3. Branch Manager,

    Union Bank of India,

    Jagannath Market Complex,

    Magurgadia, Ward No. 12,

    P.O/Dist- Keonjhar, Pin- 758001………………….……………………….Op. Parties

PRESENT:

Shri Purushottam Samantara, President

Smt. B. Giri, Member (W)

Advocate for Complainant - Sri Jagajjita Dash & Associates

Advocate for OP1 &3 - Sri Pratap Kumar Acharya

Advocate for OP2 - Sri D.K. Jena & K.K. Brahma

_________________________________________________________________________________________  

Date of Filing - 19.10.2015                                                                                        Date of Order - 17.03.2017

_________________________________________________________________________________________

SHRI PURUSHOTTAM SAMANTARA, PRESIDENT

1. The setout of the case is that obtained one Tractor being financed by Union Bank of India in earning his livelihood on dt.24.10.2013. Averred the loan amount is Rs.5,40,000/- and the Margin money Rs.2,40,000/- and a fix deposit of Rs.80,000/-.

2. The sanctioned loan in shape of D.D paid to the supplier, whereas the OP1 deferred in delivery of the Tractor on various plea and lastly on shortage of stock.

3. Again stated deliver the Tractor on dt.12.02.2014 and not supplying the 3/4 Hydraulic Trailor although received the payment of Rs.1,25,000/- in D.D towards the same.

4. The complainant also said, for the belated delivery, the counseling centre intervened and the OP1 provided the Hydraulic Trailor on dt.27.05.14 for which the complainant contended from 24.10.2013 to 24.05.2014 the delay interest as charged by the bank be collected from the OP1 in adjudication.

5. It is averred, the OP3 debited the complainant’s loan account with accrued interest in encashment the fix deposit of Rs.80,000/- without any authorization.

6. Prayed the OPs are acted illegally, irrationally and arbitrarily for which suffered harassment & mental agony, reliefs sought be allowed as deemed fit.

7. The OP1 neither appeared nor made any version in sufficient of notice.

8. The OP2 filed the version contending the case is not maintainable the litigant indulge in speculative litigation. Further the case has been filed only to wriggle out his financial liabilities. The case has been filed to take undue advantage of its own wrongs. No privity of contract, dealers are maintained on Principal to Principal basis. As there is no cause of action, the complaint is liable to be dismissed.

9. On notice, the OP3 appeared and made the version in admitting the complainant has availed the loan under “Road Transport Operator” Scheme being a commercial loan. The loan Account No.538006120005565 and the sanctioned loan amount is Rs.5,40,000/-.

10. Further averring the loan application made on dt.13/23-10-2014 and the Quotation dt.9.10.2013. Loan agreement executed on dt.24.10.2013 and the installment is Rs.12,000/-.

11. The supply of tractor and accessories is the transaction between complainant and other parties, this OP has no role to play.

12. Also averred, the repayment as scheduled is defaulted so consequential overdue as on dt.28.06.2014 is Rs.54,747/- has been adjusted from the fixed deposit and the rest amount adjusted on 27.03.2015. The outstanding amount till the date 16.01.2016 amount Rs.6,00,102/- and repaying the over dues or adjust from the deposit does not amount to any illegality.

13. Contention based on loan application, copy of quotation, statement of loan and documents executed by complainant and guarantor. Prayed as the complainant has no case, thus liable to be dismissed with exemplary cost.

14. Heard the learned advocates at both and perused the record, extensively material thereon.

Admittedly, the loan is sanctioned is under “Small Business Transport Operators” Scheme.         

15. The bare reading of the scheme says, the bank is a lending member institution - the scheme has been devised to assist transport operator (existing as well as new entrants) and to create employment opportunities for the borrowers, so when scheme of (CGTME) is of creation of self employment in earning for livelihoods plausibly embarks within the provision of law, so it is settled - A person who buys goods and use them himself exclusively for the purpose of earning his livelihood by means of self employment is within the definition of the expression “consumer”.

       Hence the complainant is a consumer on that score the case is maintainable. Again even if it constitutes the component of commercial same also gets the wind of tenability as adjudged under the authority LAXMI ENGINEERING WORKS Versus P.S.C Industrial Institute - 4^th April 1995 (SCC).

16. Astoundingly, the scheme postulates advances are given to the persons, who are owning not more than six vehicles including the one which is proposed to be financed by the bank.

17.Further the scheme also postulates the interest can be charged ranging from 12.5% to upper limit cap up 17.5% where as the complainant being poor & weaker section is  charged with 15% which explicitly say the manner of performance on the part of the this OP is not levis Culpa rather nature of Culpa Lata in violation of guidelines so interest to be accrued “that after completion of two months from the date of advance” not observed so the nature & manner of performance which is required to be maintained by” as provisioned within the term of section 2(g) has not been nurtured properly, thus it amply speak deficient in non rendering service.

18. The counsel of the complainant submitted as per section 28(A) the service of notice is sufficient and due to collusion of the OP1 the sole supplier who has defrauded the consumer and we hold “Service of notice is not an empty formality” and the OP3 has intentionally avoiding to wriggle out from the responsibility that when D.D is paid to the vehicle supplier by the bank, then non-supply of tractor/ trailor or intended goods by the automobile dealer can’t be fastened to the beneficiary. We subscribe the same view and take to note the beneficiary can’t be held responsible and non-rendering service or defect of goods, the bank & the automobile supplier be held responsible as per settled principle.

(i) It is made out in - M/s. Dada Motors Ltd. Versus Suresh Kumar - Supply of old model Car in      

     name of new model constitutes deficiency of service - 2012 (1) CPR 279 (NC).

(ii) And it is settled bank must abide by Govt. schemes.

(iii) Seller of the vehicle is obliged to deliver sale letter along with other requisite papers to the purchaser of the vehicle after receiving payment of the sale price of the vehicle - Ramsankar Shukla - Vs - Vishal Motor Proprietor. - 2011(3) CPR 34.

19. Further willful default of the OP1 proved, the dealer extended the quotation in higher price compare to the same product in the market and supplied a second hand trailor in refurbishing which amounts to unfair trade practice U/s. 2(r) of the Consumer Protection Act, the act conjure under such section -

2(r)(1) (i)    x      x

            (ii)    x      x

            (iii) Falsely represents any rebuilt, second-hand, renovated reconditioned

                    or old goods as new goods;           

            (iv) Represents that the goods or services have sponsorship or approval or

                    affiliation which such seller or supplier does not have;

             (v)    x      x

             (vi)   x      x

             (vii) Gives to the public any warranty or guarantee of the performance

                      …………………………………x         x.

             (viii)  x      x

              (ix) Material misleads the public concerning the price …………………

                     representation is made.

20. As submitted from the statement Account, it is established Jayshree Automobile has committed gross negligence during entire transaction process and also made coercion to prevail upon the poor consumer in various manner, thus liable for deficiency of service and defraudment.

21. The OP3 pleading para-6 admits the installment is of Rs.12,000/- whereas the loan- Appraisal form, it is explicitly mentioned the installment is Rs.13,000/-, being a intentional misrepresentation before this forum, again with an eye to the principle of natural justice, the fix deposit being charged/ breakup under lien does not warranted a set-off unless the remedy to repay of 60 EMI has been exhausted, the extreme action of part forecloser again tantamount to deficiency of service.

22. So under the above noted discussion, we consider the loan agreement needs restricted in modification of monthly installment and overdue charges raised in default be waived off and recast be made with @12.5% per annum interest to be charged on the entire advance till completion of repayment/redemption.  

 

O  R  D  E  R

1. The OP3 is hereby directed to restructured the loan agreement and charge 12.5% interest per

     annum within the 60 EMI framework as scheduled.

2.  And also charge interest not from the date of advance but allowing moratorium of 3 months from

     the advance being the petitioner a poor and small business operator under the scheme.

 3. The OP1 is liable to pay the petitioner a sum of Rs.1000/- (Rupees one thousand) only as penalty

      in omitting & failing to represent properly within the statutory time before this forum.

      Further the OP1 is liable to pay the petitioner a sum of Rs.50,000/- (Rupees fifty thousand) only

      for defrauding & deception and insecure transaction in delivery of a renovated trailor, inclusive

      of compensation and cost.

4. The complainant henceforth directed to pay the scheduled installment properly, failing in default

     same will attract penalty as per the agreement and law.

 

The above noted directions to be complied within 4 weeks of the order, failing Rs.20/- per day will be accrued till complete realization.

No order as to the compensation and cost.

Copy of the Order be made available to the parties as per rule.

File be consigned to record room.

Pronounced, 17^th March 2017.  

   

                                                                                                                                                                 

                  I agree            

    Sd/-17.03.2017                                                                                                 Sd/-17.03.2017                                                                  

             (Smt. B. Giri)                                                                                      (Shri Purushottam Samantara)

            Member (W)                                                                                                         President                    

         DCDRF, Keonjhar                                                                                             DCDRF, Keonjhar                                                   

          

                                                                                 Dictated & Corrected by me

 

                                                                                      Sd/-17.03.2017

                                                                               (Shri Purushottam Samantara)

                                                                                          (President)

                                                                                     DCDRF, Keonjhar