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2004 DIGILAW 25 (UTT)

Anil Kumar v. New Holland Tractors

2004-04-08

K.D.SHAHI, LUXMI SINGH, SURENDRA KUMAR

body2004
JUDGMENT This is an appeal against the order dated 31.05.2003 passed by the District Forum, Hardwar whereby the complaint of the complai!1ant was rejected for" the replacement of the tractor due to manufacturing defect and in default return of the price of the tractor along with interest. 2. It is alleged that the complainant, Sh. Anil Kumar has purchased a tractor from Chaudhary Motors, Civil Line, Bijnor, opposite party No.2. The opposite, party No. 2 is agent of opposite party No. 1 who is the manufacturer of the tractor. It is alleged that opposite party No.3 is an Area Engineer of opposite party No.1. The' opposite party No.3 met the complainant at Hardwar and persuaded him to purchase the tractor. It was alleged that all services shall be done at Hardwar and if there is any complaint, it shall be corrected by the mechanic at the house of the complainant itself It is alleged that on 08.11.2001, the complainant purchased the tractor on payment of Rs.3,90,000/- (Rupees Three Lacs Ninety Thousand). But there was manufacturing defect of Hydraulic Tapa. It was repaired twice or thrice but could not be permanently cured. The opposite party No.3 admitted that there was some manufacturing "defect and said that tractor shall taken at the agency. The opposite party No.3 alone with the mechanic came and took the tractor at the agency. It was alleged that it should be returned within 2 or 3 days. After 2 or 3 days. After 2 or 3 days, the opposite party No. 2,informed that the complainant has to pay Rs. 2,00,000/- (Rupees Two Lacs) as the hydraulic tapa of the tractor has burst. The complainant pressed that as it was a manufacturing defect the liability is that of the opposite party but the opposite party did not hear. The tractor is still standing at the agency of the opposite party No 2. As the opposite party No.2 threatened to kill, the complainant filed the• complaint. 3. The opposite party No: 1 & 3 filed joint written statement and alleged that the tractor was never sold at Hardwar. There is no dealer at Hardwar. The complainant himself had appeared at the showroom and had bargained for the tractor. The complainant alleged that he has got some land in Ramraj and some land in Village Budhgara He gave a sum of Rs. There is no dealer at Hardwar. The complainant himself had appeared at the showroom and had bargained for the tractor. The complainant alleged that he has got some land in Ramraj and some land in Village Budhgara He gave a sum of Rs. 15,0001- (Rupees Fifteen Thousand) to the opposite party No.2 and alleged that the entire payment shall be made after taking loan. It is alleged that the complainant got his account opened in the bank and gave a cheque of Rs.15,000/- (Rupees Fifteen Thousand) of Punjab & Sind Bank and took the delivery. Delivers was given through Challan No. 14098. It is said that nothing was done at Hardwar and there is no cause of action at Hardwar. The tractor has been given to the complainant only on payment of Rs.15,000/- (Rupees Fifteen Thousand). The complainant never paid the entire amount. The complainant misused the tractor. It was given to him on trial basis only and he is not a consumer. It is further alleged that Rs. 3,75,000/- (Rupees Three Lacs Seventy Five Thousand) are due against the complainant and if the complainant pays this amount along with 18%, the tractor shall be given to him as it is. 4. After taking the evidence of the parties and hearing them, the Learned Forum held that the complainant is a consumer. The forum has got to jurisdiction to hear the complaint. However on merits, it was held that the complainant did not pay die entire amount of the sale price of the tractor, therefore this is not a consumer dispute. Then;? is no deficiency in the service of the opposite party and the complaint was rejected. Against this order present appeal has been filed. 5. We have heard the Learned Counsel for the parties and gone through the records. In our view, both the parties have not come before the forum with clean hands and it is difficult for its to believe the case of either of the parties without elaborate evidence. The facts involved in the case, are of intricate and complicated nature, which require elaborate evidence. 6. For example the first dispute is whether the complaint has paid a sum of Rs. 3,90,000/- (Rupees Three Lacs Ninety Thousand) as alleged by him or not? The facts involved in the case, are of intricate and complicated nature, which require elaborate evidence. 6. For example the first dispute is whether the complaint has paid a sum of Rs. 3,90,000/- (Rupees Three Lacs Ninety Thousand) as alleged by him or not? There is no receipt, no cash memo, no bank draft, no cheque, no entry in any cash book or records of the complainant or the opposite party to show that actually this amount has been paid and received. A mere delivery challan has been produced showing a sum of Rs. 3,90,000/- (Rupees Three Lacs Ninety Thousand). In this challan, it is not said that Rs. 3,90,000/- (Rupees Three Lacs Ninety Thousand have been paid. Delivery challan is only for the delivery of the vehicle to show it at the gate and to take the vehicle out. This is not a private shopkeeper's shop where payment is made in this fashion that a person goes, pays the amount and takes the articles and return back. A sum of Rs.3,90,000/- (Rupees Three Lacs Ninety Thousand) is not paid in this' fashion as alleged. The complainant has also not fold anywhere whether he has paid this amount in cash or through bank draft• or by' cheque. Ordinarily the motor agencies do not take such huge amounts; in cash but at any rate there is neither any evidence nor pleading to this effect and we are unable to decide whether this amount has been paid or not. 7. The next question is whether the complainant has paid a sum of Rs. 15,000/- (Rupees Fifteen Thousand) There is specific pleading of the opposite party that this has been given to them by cheque. It is specifically alleged in Para 4 of the written statement that the complainant got his account opened in the bank and gave a cheque of Rs.15,000/- (Rupees fifteen Thousand) of Punjab & Sind Bank and took the delivery. The complainant has denied this fact that he gave this cheque of Rs. 15,000/- (Rupees Fifteen Thousand). Payment by cheque cannot be disputed. There remain records in the bank and everywhere, During the course of arguments, the learned Counsel for the opposite party, Sh. L.D. Bhatia started to argue that it might have been mistake in pleadings that a sum of Rs. 15,000/- (Rupees Fifteen Thousand) was paid by cheque. 15,000/- (Rupees Fifteen Thousand). Payment by cheque cannot be disputed. There remain records in the bank and everywhere, During the course of arguments, the learned Counsel for the opposite party, Sh. L.D. Bhatia started to argue that it might have been mistake in pleadings that a sum of Rs. 15,000/- (Rupees Fifteen Thousand) was paid by cheque. It might have been paid by cash but that will not prove that the complainant has paid Rs.3,90,000/- (Rupees Three Lacs Ninety Thousand}. We agree to this argument but (here is no question of any presumption One fact will lead to the other fact and if this is falsified that the complainant has given only a cheque of Rs. 15,000/- (Rupees Fifteen Thousand) and has taken away the tractor, the Court or forum may consider the case of the opposite party. No argument to ariy extent without pleading can be entertained. 8. Sh. Ani! Kumar in his affidavit has specifically alleged in Para 5 that he never gave a cheque of Rs. 15,000/ - (Rupees Fifteen Thousand). To the contrary in the same para, he has alleged that he has given a cheque of Rs. 10,000/- (Rupees Ten Thousnad). The opposite party did not say anything about this allegation of the giving of cheque of Rs. 10,000/- ( Rupees Ten Thousand) for registration and insurance, etc. 9. Thus what is to be proved is actual sale and purchases, the payment of the price and without calling for evidence of payment, mode of payment records of the parties, this fact cannot be decided. We will no decide the case merely on allegations and counter allegations without adequate evidence, which may' permanently affect the rights and titles of the parties. 10. There is yet a counter case of the opposite party, which was advanced during the course of arguments and has been pleaded in the written statement that the complainant did not pay the entire price of the tractor, therefore the vehicle was seized by the dealer. Whether this allegation is correct or incorrect, is also to be decided and if this case is correct, case of the complainant shall be falsified. 11. The Learned Counsel for the complainant, Sh. Whether this allegation is correct or incorrect, is also to be decided and if this case is correct, case of the complainant shall be falsified. 11. The Learned Counsel for the complainant, Sh. M. K. Kohli argued that no notice was given, no police report was lodged, nothing was done if the amount was due against the complainant, he should have been given some notice or should have been demanded this amount but nothing was done. This will raise a' presumption that "mount was not due. Its converse argument can also be correct that if the complainant has paid the entire amount and if he has given the tractor only for the repair, of the hydraulic tapa and if the opposite parties are not returning the vehicle, the complainant should have lodged F.I.R. should have moved to the Authorities or at least should have taken the tractor back with or without repairs and should have seeked his remedy in proper Court of Law but nobody will keep his tractor at the agency of the opposite party forever without thinking that he mayor may not get the relief of replacement or refund or return of the price and if his complaint fails, his tractor shall also be rusted out, at least it should' be properly kept and guarded. If it would have been so, the complainant should also have lodged the F.I.R. under Section 406 of the IPC or any other relevant provisions of Law or should have tried to take back his tractor. 12. There is absolutely no evidence on any of these allegations and without proper evidence, these acts cannot be decided. The dispute is purely a dispute of civil nature. Complicated and interacted enough to be decided on elaborate evidence. In our view, the 'Learned Forum should not have given an outright finding that the complainant has not paid the entire amount without scrutinizing the records and evidences of the parties. 13. The net result is that this complaint is to be dismissed as such and the parties may be directed to seek their remedies in proper Court of Law through a civil suit and in case any such suit is filed, the expression of opinion by the Learned Forum or by this Commission shall not be taken as an observation on merits of the case. ORDER The appeal is hereby allowed. ORDER The appeal is hereby allowed. The order dated 31.05.2003 is hereby quashed. The complaint is also dismissed with the observation that the parties may file suit in the competent Court of Jurisdiction to get their reliefs. The findings recorded by "the Learned Forum or this Commission shall not be treated as an expression of opinion on merits of the case of either of the parties. Cost through out shall be easy.