Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:
(1) These two appeals, one filed by original Opponent No.2 and another filed by original Opponent Nos.3 & 4, i.e. Mahindra & Mahindra Financial Services Ltd., since arising out of order passed on 21.12.2007 in Consumer Complaint No.214/2002, Mr.Mallappa Hanmant Choudhari V/s. Executive Director, Mahindra & Mahindra Ltd. & Ors., by Consumer Disputes Redressal Forum, District Solapur (‘Forum’ in short) are disposed of by this common order since they involved the identical facts and common questions of law.
(2) The Respondent no.1/Original Complainant - Mr.Mallappa Hanmant Choudhari (hereinafter referred to as the ‘Complainant’) comes with the case that after purchase of Mahindra 575 D.I. Tractor through the dealer - Opponent No.2 – Ravindra Pandurang Kamble on 28.09.2001, after initial plying for about 1 ½ month, said tractor was found not taking proper load. The matter was referred to the dealer. It was repaired. Again the same problem reoccurred, but thereafter the dealer avoided to replace the tractor and false report is prepared that the complainant had given certificate that the tractor was functioning properly and was promptly repaired. Thereafter in March, 2002 again the said problem arose. The Complainant made request to replace the tractor, but in vain. In the month of May, 2002 Complainant left the tractor with the Opponent No.2 and requested that said tractor be taken back and new tractor be given. Thereafter Opponent No.2 sent a letter dated 04.06.2002 alleging that on his own the Complainant left the tractor with Opponent No.2. By notice dated 25.07.2002 Complainant sent notice requesting for replacement of tractor. To which false reply was sent on 23.08.2002 and the tractor was not replaced and therefore, this consumer complaint was filed.
(3) Opponents appeared and denied the contentions about the alleged defects in the tractor. It has also brought to the notice by the Opponents that the tractor was left with Opponent No.2 by the Complainant himself and thereafter, financial institution, viz.Opponent Nos.3 and 4 (are the one and the same person though different addresses are mentioned) for the defaults committed by the Complainant took possession of the tractor. These subsequent developments were thereafter incorporated by the Complainant by amending the complaint stating that the action of financial institution was without his knowledge and illegal.
(4) We made inquiry from the Ld.Counsel appearing for the Respondent No.1/original Complainant in these appeals as to what sort of evidence adduced by him to substantiate his case. According to him except the documents tendered on record which are not disputed by either of the parties, no evidence on affidavit is adduced by the Complainant. From the documents, particularly job card of the repairs one thing is made clear that the tractor was repaired to the satisfaction of the Complainant from time to time. Allegation that false reports were prepared by the Opponent is not substantiated by any evidence by the Complainant. Therefore, the documents as they stank, negatives the contentions of the Complainant about falsity of these reports. About the manufacturing defect, the main contention of the Complainant is that the tractor was not taking load. But, the job card shows that those complaints never survive since to the satisfaction of the Complainant the tractor was repaired. There is absolutely no evidence to show that there is any manufacturing defect in the tractor.
(5) Now, coming to the allegations against the financial institution, from the averments made in the original complaint and even as the case presented by the Opponent No.2 the dealer, it could be seen that leaving the tractor at the godown of the Opponent No.2 by the Complainant himself is the fact not in dispute. According to the Complainant he had himself left the tractor with a request to replace the same. According to Opponent dealer and the financial institution, said tractor was left by the Complainant since he could not pay and discharge his obligations to pay the installments of loan. In the absence of any evidence adduced on behalf of the Complainant, we find the case of the Opponents that Complainant himself left the tractor on failure to discharge his obligations towards the rest of the loan appears to be more probable and thus, we accept the same. The Forum while assessing the evidence, in fact there is no evidence adduced as such, accepted the documents which are not disputed, erroneously depended upon hypothetical considerations and got infected by moral considerations. Holding that there was arbitrariness on the part of the financial institution to take into possession the tractor and to sell it, the Forum did not look into the documents and terms of hire purchase agreement between the parties.
Clause nos.11 and 12 of the agreement are relevant and they read as under:
Clause No.11:
“On failure of the Hirer to pay dues to the Owner, the Owner or its Agent or Servants or any other person duly authorized by the Owner shall be entitled to enter upon any premises where the product may be or it is believed to be and take possession of the same without being liable to any court or other proceedings by the Hirer or any person claiming under him or otherwise. The Hirer undertakes that under no circumstances whatsoever, he or his employees or agents shall hinder, resist or create any opposition or use any force to stop the Owner, their employees or representatives from taking charge of and repossession of the Product.”
Clause No.12:
“On repossession of the product under any of the provisions of this Agreement the Hirer shall pay forthwith to the Owner all hiring rentals in arrears or due upto the date of receipt of the Product by the Owner, all costs or charges that are payable under any of the provisions of the Agreement including cost of taking possession and removal of the Product and all costs incidental to putting the Product in a proper state of repair condition (fair wear and tear excepted). In no event will any sum already paid under the provision of this Agreement be refundable by the Owner to the Hirer. Further the Hirer also agrees that the owner has the right to sell or re-hire the product. The said resale/hire shall in no manner be connected with the dues payable by the Hirer to the Owner under this agreement. This agreement being a separate & distinct agreement does not credit any ownership rights in favour of the Hirer with respect to the Product till the option of purchase has been exercised as per the terms of this agreement.”
Those clauses which governs the relationship between the parties, speak in favour of the financial institution and their impugned action since the fact of default committed by the Complainant to repay the loan is not in dispute. Complainant tried to allege that these clauses are void since his signatures were taken on blank papers, but, there is no evidence to substantiate the same.
(6) In the circumstances, we find the Forum erred in holding the deficiency in service on the part of the financial institution in respect of taking into possession and selling the tractor.
(7) The Forum also erred even to hold that it is the financial institution responsible for this arbitrariness to take possession and to sell of the tractor and to hold manufacturer of the tractor and its dealer jointly and severally responsible to pay the compensation. Furthermore, as earlier observed, there is absolutely no evidence to show that there is any manufacturing defect in the tractor. In fact, the tractor was used for so many days engaged in a commercial activities to earn the profit. In the circumstances to hold Opponents jointly and severally responsible for any compensation is also improper.
(8) Thus, we find that the impugned order cannot be supported with. We hold accordingly and pass the following order:
O R D E R
(i) Both Appeal Nos.518/2008 and 759/2008 are allowed.
(ii) In the result the order passed in Consumer Complaint No.214/2002 is quashed and set aside and in the result complaint stands dismissed.
(iii) In the given circumstances no order as to costs.
(iv) In both the appeals the amount deposited under the provisions of section 15 of the Consumer Protection Act 1986 be refunded to the Appellants as per the rule.
Pronounced on 7th April, 2011.
