Per Hon’ble DR. S.K. Kakade, Presiding Member.
1) This appeal was filed by Shri B.N.Khuradkar against the order passed by learned Additional District Consumer Forum Nagpur, in Consumer Complaint No.CC/15/2, the order passed on 20/01/2017 by which the complaint against the Provincial Tractor Pvt. Ltd. of Nagpur and others was dismissed.
2) The brief facts for deciding this appeal are as follows.
3) The appellant who was original complainant, farmer by occupation purchased a tractor in 2009 from the Provincial Tractor Pvt. Ltd. Bhandara Road Nagpur, dealers of Mahindra and Mahindra tractor co. While purchasing the tractor the appellant obtained loan from Mahindra and Mahindra Financial Services Ltd., Civil Lines Nagpur. The detailed specification of the tractor was as follows :-
4) Tractor manufactured in 11/2001, tractor have four cylenders, chesis No.NAPU870, engine No.NAPU 870, fuel-diesel, hourse power (BHP) 42 HP, makers classification MAH 44 D, seating capacity -1, weight of the tractor 2021 kg., color –Red. The said tractor was sold to the appellant on 07/10/2009. While the said tractor was taken to the workshop at Unnati Motors, the mechanics at Unnati Motors informed the appellant that being eight years old tractor there will be excess expenditure on repairs and thus the appellant spent Rs.50,000/- for repairs. Thus the dealer sold the tractor that was manufactured way back in 2000. When the appellant/original complainant approached the O.Ps. (respondent in this appeal), there was no response from them. According to appellant since his family is dependent on the use of tractor in farming which is for earning livelihood, the said tractor could not be used for agricultural operations. This tractor was also being used for renting out to other farmers. Since it could not be used even for renting out the income of appellant dropped to significant extent and thus he could not repay the EMI’s of the bank loan. On 12/12/2013 the respondents without informing the appellant seized the said tractor that affected the work of the appellant. The appellant sent notices to the respondents and after receiving unsatisfactory answer to the reply of the said notices the appellant filed consumer complaint before Additional District Consumer Forum, Nagpur.
In Support of his contention, learned advocate for appellant referred to judgment by Hon’ble Supreme Court of India, Vodafone Idea Cellular Ltd……V/s…..Ajay Kumar Agarwal, Civil Appeal No.923 of 2017 (Arising out of SLP ( C ) No.28615 of 2016) Paras No. 15, 16, 19 and 21. The Hon’ble Supreme Court has made it clear that, this Court reiterated the settled position of law in the following terms:
“ It has consistently been held by this Court that the remedies available under the provisions of the CP Act are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP Act.”
It is clearly mentioned that, even after arbitration, the alternate remedy approaching Consumer Forum can not be barred. So actually the ratio of this judgment is helping the respondent.
5) The O.Ps/respondents No.1 and 4 in this appeal defended the complaint by filing written statement as well as other documents. After hearing both the parties learned Forum dismissed the complaint with findings that since the original complainant was not able to repay the EMI’s the said tractor was seized and inspite of having remedy in the form of arbitration the appellant preferred complaint before the learned Additional District Consumer Forum Nagpur. Aggrieved by this dismissal, the complainant filed appeal before this Commission.
6) Learned advocate for the appellant during the course of argument narrated the course of events and that the appellant being a farmer was using the Mahindra and Mahindra tractor for farming operations and used the tractor from 2009 to 2012. While verifying the documents it was noted that on RTO documents the manufacturing year mentioned as 2000 instead of 2008. On receiving this information and that the tractor being 8 years old huge expenses will be needed for its repairing that time the appellant spent Rs.50,000/- for repairs. Further the respondents forcefully took possession of the tractor for non payment of EMI. Learned advocate for the appellant further submitted that out of the total loan, amount Rs.3,58,000/- was repaid through monthly EMI’s of Rs.59,000/- for 60 months. The outstanding loan amount was Rs.3,49,773/- the same was to be repaid by the appellants, as per the arbitration proceeding conducted for resolving the dispute on 18/02/2011. Thereafter the possession of the said tractor was restored with the complainant on 10/02/2012. But again the said tractor was seized by respondent No.3 i.e. Mahindra and Mahindra Financial Services Ltd. The tractor was sold by the company on 28/01/2014 for Rs.1,95,000/-, hence there was unfair trade practice and deficiency in service of O.Ps. that led the appellant to file complaint. Learned advocate for the appellant further submitted that the appellant was not allowed to further take legal course against the arbitration award and the tractor in dispute was sold by the O.P.No.3. Learned Additional District Consumer Forum Nagpur without considering the legality of the action taken by O.P.No.3 dismissed the complaint and hence further requested to allow this appeal and set aside the order passed by learned Additional District Consumer Forum Nagpur.
7) Learned advocate representing the respondents submitted that though the tractor was manufactured in 2008 and sold in 2009 it was because of the error on the part of RTO who wrongly recorded the year of manufacture as 2000. Further according to submission of the learned advocate for respondents the said tractor was continued to be used by the appellant but it was the financial services company who took repossession of the vehicle after failure of payments of EMI’s by the appellant. The arbitration award which was passed by the arbitrator was already complied with by the respondent No.1 and 4. In view of this, the learned advocate prayed for confirming the order passed by the learned Add DCF which is just legal and proper.
8) Learned advocate for respondent No.2 submitted that the Mahindra and Mahindra Tractor Co.Hingna Road Nagpur is a manufacturing firm and there was no privity of contract between the appellant and this respondent No.2. According to advocate, the record of manufacturing year as 2000 instead of 2008 was an error and hence the order passed by learned Additional District Consumer Forum Nagpur is legal and proper.
9) Learned advocate for financial services company who is respondent No.3 submitted that there is no relief claimed against respondent No.3 and since the arbitral award was already satisfied and that the appeal was not filed against the arbitral award, the order passed by learned Additional District Consumer Forum needs to be confirmed. Learned advocate referred a judgment by Hon’ble National Consumer Disputes Redressal Commission 2021 NCJ 349: 2021 (2) CPR 527 : 2021(2) CPJ 202. Navneet Jha……V/s…… Magma Shrachi Finance Limited. In the said judgment Hon’ble National Consumer Disputes Redressal Commission held that “even if arbitration award is pased, the complainant can approach Consumer For a and Consumer Forum has jurisdiction to entertain the complaint.”
10) While replying to the contentions of respondents learned advocate for the appellant submitted that there is no document that confirms the year of manufacture, this was not noted by learned Additional District Consumer Forum and according to Section 3 of Consumer Protection Act 1986 this Act is not in derogation of any other act, so with this broader view of the Act, though the arbitration proceeding was complete; the appellant being consumer approached the learned Additional District Consumer Forum for getting relief and requested that the matter may be remanded back for rehearing on the basis of the evidence, on documents filed by both the parties.
11) We have gone through the order passed by learned Additional District Consumer Forum Nagpur and the documents filed by both the parties. Learned Additional District Consumer Forum Nagpur considered that the original complainant should have filed an appeal against the order of arbitration as that was the legal approach available to the appellant and thus learned Additional District Consumer Forum came to the conclusion that there was no unfair trade practice. In our opinion as it is rightly mentioned that as per Section 3 of Consumer Protection Act 1986 the Consumer Protection Act is based on the principle of natural justice and that it is not in derogation of any other Act. The complainant was not satisfied by the arbitration award and definitely have right to approach Consumer Forum as “consumer” of the O.Ps. The appellant in prayer of the original complaint has prayed for exchanging the old tractor with the complete new tractor. We note that the said tractor was already sold by the respondent No.3 i.e. financial company services and hence the tractor in dispute is not available. The grievances of the appellant are genuine and appellant had suffered mental agony and physical harassment when the said tractor was not available for the agricultural operation during farming. It is specifically noted that out of the loan amount the appellant already repaid Rs.2,60,000/- to the respondent No.3 i.e. financial services company. It is also noted that the appellant is illiterate farmer who was shocked by the information that the tractor was eight years old and that there could be the enormous expenditure on repairs, thus according to us the appellant who is the consumer, suffered at the hands of all the respondents. In view of this the Commission is of the opinion that the respondents have followed unfair trade practice and without helping the illiterate farmer, provided deficient services to him.
12) The appellant has prayed for replacement of the old tractor, but the said tractor was already sold by respondent No.3 and hence it is not available. Further learned advocate for the appellant during oral argument prayed for remanding back to the matter to the learned DCF for considering the deficiency in service. In our view remanding back the matter will not be proper as well as legal since the reason for dispute i.e. a tractor is not available as well as replacement of that tractor by new tractor does not seem to be proper. It will be proper to compensate the appellant for physical and mental harassment.
13) The Commission is of the opinion that the order passed by learned Additional District Consumer Forum is not just and legal and hence we pass the following order.
ORDER
- The appeal is partly allowed to the cost quantified to Rs.25,000/- to be paid by respondents jointly and severally to the appellant.
- The order passed by learned Additional District Consumer Forum in CC/15/2 is hereby set aside.
- The respondent Nos.1 to 4 are hereby directed to pay Rs.2,00,000/- jointly and severally towards mental and physical harassment caused to the appellant.
- The above order to be complied with within two month from the date of order failing which will carry interest @ 12 % p.a. from the date of receipt of order till its realization.
- Copy of this order be provided to both parties free of cost.
