D.O.F. 09.04.2008

                                        D.O.O.16.11.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

       Present:   Sri. K.Gopalan                 :    President

             Smt. K.P.Preethakumari  :     Member

             Smt. M.D.Jessy                :     Member

Dated this the 16^th    day  of November    2011.

C.C.No.74/2008

  Purushothaman Nair,

  Maleparmbil House,

  Kallettumkadavu,

  Ramanthali.P.O.                                     Complainant

   (Rep.by Adv.V.A.Satheesh)

1.Managing Director,

   M/s.Mahindra & Mahindra Ltd.,

   Mahindra Towers,

   Worli Road, No.13,

   Worli, Mumbai 18.

   (Rep. by Adv.Sri.Denu Joseph)

2. The Proprietor,

    M/s.Kureethadam Farm Equipments,

    7/205 A Muriyanal,

    Kunnamangalam.P.O.,

    Kozhikode 673 571                            Opposite Parties

    (Rep. by Adv.Shyam Padman)

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to replace a brand new tractor or else to refund `7, 05,000 with compensation.

          The case of the complainant in brief is as follows: On 17.8.2006 he had purchased a Mahindra Tractor 595 D1 from the authorized dealer 2^nd opposite party for `7, 05,000. He had also purchased another Mahindra tractor 595 D1 on 15.12.2006 with Engine No.CNF4003 on the assurance that it is a vehicle manufactured in the year 2006. The tractor was registered before the RTO Taliparamba as KL.59.3325. The price of the vehicle was `7, 05,000. The complainant had purchased this tractor with a compressor. The complainant was using this tractor for farming as well as quarrying purpose. Within few days the vehicle started to show the trouble of b rake down. He had to take the vehicle every month to 2^nd opposite party’s service station for major repairs. There are serious manufacturing defects to this tractor. Complainant purchased this vehicle believing the words of 2^nd opposite party that it was a brand new vehicle. But now the complainant is having information that it was a second hand vehicle. From the operators manual itself erasure in corrections can be seen. The complainant is using the above tractor for earning his livelihood. The tractor was not intended for resale or for any commercial purpose. The representation that the tractor was a new one is a part of an unfair trade practice. It was a defective one and the complainant is entitled for a brand new tractor.

          This is a case once decided against opposite party. The matter was not contested by the opposite parties and stood exparte before the Forum. The Hon’ble State Commission pleased to remit the matter with direction to permit the opposite parties to contest the mater and to dispose of the case by a considerable order on merits.

          The opposite parties entered appearance and filed version separately. 1^st opposite party filed version contending as follows: The complaint is not maintainable since the vehicle was purchased for commercial purpose. The transaction between this opposite party and 2^nd opposite party are on principal to principal basis. This opposite party never had any transaction with the complainant hence to dismiss the complaint against 1^st opposite party. The complaint is not also maintainable before this Forum for lack of jurisdiction. None of the opposite parties are having their office at Kannur District. The agent of 2^nd opposite party accepted booking within the jurisdiction of this Forum is false and a cooked up story. The complaint is totally baseless. 2^nd opposite party had given detailed reply to the legal notice of complainant. The tractor was purchased from 2^nd opposite party for an amount of `4, 40,000 and a compressor for `1, 20,000. 1^st opposite party do not manufacture compressor. 2^nd opposite party also denied the contention that the tractor was a second hand one. The tractor was not brought for scheduled service. The complainant did not mention about the present condition of the vehicle. Since the vehicle was not subjected to the scheduled periodical service it would prove that the vehicle was poorly maintained. The pleading itself proves that tractor was used for commercial purpose. He has not produced original invoice to substantiate the claims of total refund. The claim that he had purchased a tractor for `7, 05,000 is not substantiated. It is false. The allegation with respect to the corrections made in the operator’s manual is to be put to strict proof. The allegation that a second hand tractor was given is false. There is no merit in the case of the complainant. Hence to reject the relief sought.

          2^nd opposite party filed version separately contending as follows: Complaint is not a consumer. There is no defect in goods or deficiency in service. The vehicle has been commercially exploiting by engaging paid drivers. The complainant purchased another tractor also. It establish that the vehicle is used for commercial purpose.2^nd opposite party is only the authorized dealers and service centre of 1^st opposite party. The tractors having wee having manufacturers warranty for a  period of 24 months or 2000 hours of operation whichever occurs  earlier. The dealership with the Mahindra & Mahindra Ltd. had been terminated as per the communication dated 27.11.08 settling the entire accounts. So this opposite party is an unnecessary party. The opposite parties do not carry on business or have any branch offices within the territorial jurisdiction of this Forum. No cause of action or part thereof has arisen within the territorial jurisdiction of this Hon’ble Forum.  The price of the tractor was `4, 55,000. The total cost of the tractor and compressor came to `7, 05,000.Complainnt is liable to pay the balance amount `15,000. The vehicle was taken delivery on 16.12.2006 with full satisfaction. The baseless allegations were raised after one year with the issuance of lawyer notice. The allegations are devoid of truth and merits. The complaint is liable to be dismissed.

On the above pleadings the following issues have been taken for consideration.

1.Wheter the complaint is maintainable?

2. Whether there is any deficiency on the part of opposite

     Parties?

3. Whether the complainant is entitled for the remedy as

    prayed in the complaint?

4. Relief and cost.

The evidence consists of the oral evidence of PW1, DW1 and documentary evidence Exts.A1 to A4 marked on the side of complainant.

Issue No.1

          Admittedly complainant purchased tractor from the 2^nd opposite party. The complainant alleges that there are serious manufacturing defect to the tractor. Complainant has also allegation that the tractor was a second hand vehicle. Opposite party has taken contention together with other contention that complainant purchased vehicle for commercial purpose hence the complaint is not maintainable. It is relevant to exam this aspect of using vehicle for commercial purpose from the very outset before going deep into the subject matter.

          The case of the complainant is that he was using this tractor also for faming as well as quarrying purpose. The contention of opposite parties is that the vehicle has been commercially exploiting by engaging paid drivers. Complainant in his proof affidavit denied this. In the affidavit evidence complainant stated that no paid drives were engaged to drive the tractor. But at the same time he has pleaded that on 17.8.2006 he had purchased Mahindra Tractor 595 D1 from 2^nd opposite party and on finding success of the above said tractor he had purchased another Mahindra Tractor 595 D1 on 15.12.2006. That means he had purchased two tractors in the year 2006. It is not possible to drive two vehicles at a time without engaging a paid driver. So the evidence adduced by the complainant that he had not engaged any paid driver, is lie. In the cross examination he has deposed “ Tractor ssIIm-c-yT sN¿p-¶Xn\p XanÄ \m«p-Im-c-\mb aWn-I-WvT³ F¶ ss{Uh-sd-bmWv Npa-X-e-s¸-äp-¯n-bXp’. Moreover, answer to a question of 2^nd opposite party in cross examination PW1/Coplainant deposed that “ F\n¡v  tractor D]-tbm-Kn-¡p-¶-Xn-\p-ff driving license CÃ. Iqen¡v Bsf sh¨mWv h­n D]-tbm-Kn-¡p-¶Xp”. In the chief affidavit filed on 2.11.10 complainant stated thus: “ I was not engaging any paid  drivers to drive the tractor”.  There is no doubt it is a false statement. In ordinary course one can assume only that two tractors were used to run by two drivers. It is a fact that complainant is an owner of two tractors, who had no driving license. It is not possible to use these two tractors without engaging paid drivers. Complainant being the owner of two tractors engaging two paid drives it can only be considered that the vehicle is used for commercial purpose. The definition under section 2(1)(d)(i) is meant that a person who obtains such goods for any commercial purpose is not a consumer. Hence the contention of opposite parties that complainant is not a consumer has substance. Hence issue No.1 is found against complainant.

          Since it is found complainant is not a consumer the complaint is not maintainable and thereby there is no need to go further to explore other aspects. But it is pertinent to note that complainant has not answered properly whether the cause of action or any part of it has arisen within the jurisdiction of this Forum. He has merely stated that the  one agent of 1^st opposite party met him in the lodge, for which no evidence adduced or attempts has been made to bring out any material evidence to substantiate this same considering the fact that the opposite parties has taken the issue specifically. At least he could have produce occupants register of the concerned lodge, wherefrom complainant allegedly met with the agent of the company. So also opposite parties specifically contended that he has not brought the vehicle for periodical services. The main allegation of the complainant with respect to the subject mater is manufacturing defect. A vehicle which has not taken for periodical service it is difficult to prove that there is manufacturing defect. The present condition of the vehicle has also not been brought to notice. It is also pertinent to note that no step has been taken to appoint an expert commission so as to obtain a confirmed expert opinion with respect to the manufacturing defect. Though not went deep into these points these are considerable points against complainant on merit side also as stated above.

          Any how we are of opinion that in the light of the finding that the vehicle has been used for commercial purpose and the failure on the part of complainant to establish that it is used for earning his livelihood the complaint is not maintainable. Hence the issue No.1 is found against the complainant. Since it is not essential we are not probing the subject matter further.

          It is therefore, the complaint stands dismissed. No order as to costs.

                       Sd/-                     Sd/-                        Sd/-

                  President               Member                Member

APPENDIX

Exhibits for the Complainant

A1. Operators Manual D1 tractors

 A2.  Copy of the lawyer notice sent to Ops.

A3 & A4.  Reply notice issued by OPs 1 & 2.

Exhibits for the opposite parties: Nil

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties

DW1.Pavan Deolia

                                                 / forwarded by order/

                                                                                                                                           Senior Superintendent