STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH.

[RBT NO.1262 OF 2008 IN APPEAL NO.2339 OF 2002]

Haryana Tractors Limited, 21/3, Mathura Road, Ballabgarh, District Faridabad (Haryana).

                                                ………Appellant.

Versus

1.      Kalu Ram

2.      Jagmal son of Tota Ram

Resident of Shahpur Ist (Mandi), Tehsil Narnaul,

District Mohindergarh.

3.      Ajay Tractors, Rewari Road, Narnaul

Through its Proprietor.

4.      The United India Insurance Company Limited, Behror, District Alwar (Rajasthan).

…Respondents.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL (RETD.), PRESIDENT.

HON’BLE MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

                        HON’BLE MRS. NEENA SANDHU, MEMBER.

Argued By:            Sh. Neeraj Sharma, Advocate for the appellant.

                        Sh. Ramesh Chahal, Advocate for respondents No.1 and 2.

                        Sh. Naveen Sharma, Advocate for respondent No.3.

                        Sh. Aman Bahl, Advocate for respondent No.4.

[RBT NO.1266 OF 2008 IN APPEAL NO.2329 OF 2002]

M/s. Ajay Tractors, Rewari Road, Narnaul through its Proprietor Sh. Ajay Dutt.

                                                ………Appellant.

Versus

1.      Kalu Ram

2.      Jagmal son of Tota Ram

Resident of Shahpur Ist (Mandi), Tehsil Narnaul,

District Mohindergarh.

3.      Haryana Tractors Limited, 21/3, Mathura Road, Ballabgarh, District Faridabad (Haryana).

4.      The United India Insurance Company Limited, Behror, District Alwar (Rajasthan).

…Respondents.

Argued By:            Sh. Naveen Sharma, Advocate for the appellant.

                        Sh. Ramesh Chahal, Advocate for respondents No.1 and 2.

                        Sh. Neeraj Sharma, Advocate for respondent No.3.

                        Sh. Aman Bahl, Advocate for respondent No.2.

MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

1.                    Vide this common order we propose to dispose of two appeals bearing RBT No.1266 of 2008 (Appeal No.2329 of 2002) filed by the OP No.1 i.e. Ajay Tractors and RBT No.1262 of 2008 (Appeal No.2339 of 2002) filed by OP No.2 i.e. Haryana Tractors Limited against one and the same order of District Consumer Disputes Redressal Forum, Narnaul  (for short hereinafter to be referred as District Forum) dated 3.9.2002 passed in complaint case No.23 of 1995: Kalu Ram and another Vs. Ajay Tractors and others.     

2.                    In nutshell, the case of the complainants Kalu Ram and Jagmal is that they had purchased a tractor Veer Partap Model 3035 of 35 HP from OP No.1 (dealer) on 16.7.94 for a sum of Rs.1,85,000/-. OP No.2 is the manufacturer of the tractor in question. It is stated that OPs charged a sum of Rs.10,000/- more for supplying harrow and cultivator. The tractor in question was insured with OP No.3. Even through the tractor had been purchased on 16.7.94, the bill was issued only on 19.8.94. It is alleged that the tractor had manufacturing defect from the beginning as the gear used to become free due to manufacturing defect and because of this gear teeth got eroded. The list system when in use produced rattling noise and the oil had also to be changed. The tractor when taken to the fields for plying for the first time after plying about half acre of land, the camrod of the diesel pump broke. The tractor had to be toed to Narnaul at the location of OP No.1 on which Rs.1,500/- were spent by the complainants. On 20.9.94, the complainants took the tractor again to the workshop of OP No.1 for second free service where it was found that the oil still was leaking and as no oil was available with the OP, the complainants were asked to bear with the defect and the oil still could not be changed and it was promised that oil still would be changed at the time of third service. Again when the tractor was put to use, it got heated up in no time and therefore, it would be used till the date of third service, which was done on 9.11.94. Even though it was found that the oil still was OK, still the oil started leaking when the tractor was put to use. On 10.11.94, Rishi Paul, a mechanic of OP No.2 visited the premises of OP No.1 and checked the tractor and both oil seal and gas kit were replaced but even then the defect persisted. The lift system was also repaired by the said mechanic but it also could not properly set right. The mechanic advised the complainants to take the tractor back to OPs No.2’s workshop at Ballabgarh where it was taken on 2.1.95. on 19.1.95  when the complainants went to take the tractor at Ballabgarh workshop, they found that the tractor had not been repaired and was in the same condition as it was  left on 2.1.95. The Service Manager asked the complainants to come after 7 to 8 days but when after ten days, the complainants sent their representative to bring the tractor back, it was again found that no repair had been done and only its crank had been changed with a new one. On trial, the defect of leaking of seals again took place and thus, the tractor was again taken back to the workshop of OP No.2 and was left with them for removal of the manufacturing defect. OPs replaced the engine of the tractor with a new one but when after it is changed the tractor was being brought back,  the problem again appeared on the way. Thus, the tractor was left by the complainants at the premises of OP No.1 and it was examined by its mechanic at Narnaul and it had been found that the entire engine oil had empted out due to improper functioning of the pump. The mechanic on the spot found that the oil pump was not working properly and the complainants were again asked to take the tractor back to the workshop of OP No.2 at Ballahgarh. Since, it was the sowing season, the complainants being busy in that activity requested the mechanic to take it to Ballabgarh and since then, the tractor is lying in the workshop of OP No.2 and the complainants have consequently suffered huge financial loss as they had to get their land cultivated by hiring tractors from the third party and all this caused a great mental and physical harassment also to the complainants and thus, this complaint had been filed.

3.                    The version of OPs No.1 and 2 is that in fact the tractor was mishandled by the complainants who had no technical knowledge or know how and therefore, this mishandling led to the defects in the tractor. It has been denied by OPs that there was any nexus between the problem in the engine and the defect in the gear or that the gear became free due to manufacturing defect or that the gear teeth got eroded. Any defect in the lift system has also been denied. It has also been stated that the Camrod had not been broken and the same had only been dislocated because of mishandling of the tractor. It is also the case of OPs that the complainants did not hold valid driving licence and further, it has been denied that Rs.1,500/- had been paid by the complainants as toeing charges of the tractor. It has also been stated that when the tractor was brought for the second service, the oil seal was not leaking but only for the satisfaction of the complainants, the seal was replaced and the minor defects in the tractor had been rectified. Even through there was no defect in the tractor, the complainants insisted that it be taken to the workshop of OP No.2 and only on their insistence, it was sent there. As regards delivery of the tractor after checking at the workshop of OP No.2, it has been stated that one Shakti Singh came to collect the tractor after 7-8 days but he did not possess any valid authority letter and he was asked to bring the same. He, thereafter, came only after 9-10 days but again did not bring any authority letter and it was only after a confirmation was given by OP No.1 on telephone, the delivery of the tractor was given to Shakti Singh who also gave a certificate of satisfaction about the repairs done. OPs have again denied that there was any leakage of oil in the tractor but even then, the tractor was brought back and when it was checked, it was found to be in perfect working order. It has also been stated by OPs No.1 and 2 that the complainants had been informed several times to take the delivery of the said tractor from the workshop of OP No.2 but they never turned up. As per OPs No.1 and 2, this is a false complaint and there is no truth in the allegation regarding the defect in the tractor. It is also the case of OPs No.1 and 2 that the complainants are not consumers as the tractor had been purchase for commercial purpose.

4.                    The version of OP No.3 i.e. Insurance Company is that it had no link with the alleged manufacturing defect and that nothing has been alleged against OP No.3.

5.                    The learned District Forum got the tractor checked from the mechanics of Haryana State Transport, Narnaul and reports are annexed as pages 28 to 31 of the appeal paper book. The learned District Forum in its analysis of the complaint referred to Exhibit P-2, which is a certificate issued by Senior Deputy General Manager Sh. Rajinder Kumar regarding the change of the engine of the tractor and it has also referred to Exhibit P-8, which is an affidavit filed by Sh. Shakti Singh, the grandson of the complainants stating therein that he was making regular contract with the OPs regarding the defect in the tractor. The learned District Forum has also referred to the affidavit of Sh. Sunit Kumar son of Sh. Vijay Pal Singh in which he has stated that he is having valid driving licence and knows how to drive a tractor. The learned District Forum has also made reference to the checking done on this tractor by Haryana Roadways, Narnaul in the fields from 20.2.99 to 26.2.99. To the learned District Forum, after perusal of the above exhibits and the reports, it became apparent that the tractor was having many manufacturing defects. The learned District Forum has also gone on to record that even a report produced by the complainants of a private mechanical engineer namely Sh. Satyal Paul also corroborated the allegations of the complainants regarding the manufacturing defects in the tractor. The learned District Forum was also of the view that the objections filed by OPs No.1 and 2 against the report of Haryana Roadways had no weight as this report had been filed by an independent agency pointed out by the District Forum. The learned District Forum also chose to give no credence to the affidavit in the shape of a report submitted by Sh. Mohinder Singh justifying the version of OPs as it was not corroborated by any other independent evidence and this affidavit is by a person who himself is the employee of OP No.2 and thus was an interested party in the issue. In view of the above analysis, the learned District Forum discharged OP No.3 from any liability as it was not anyway connected with the manufacturing defect in the tractor but had held OPs No.1 and 2 deficient in service and accordingly, directed OPs No.1 and 2 to refund the price of the tractor amounting to Rs.1,85,000/- along with interest @12% per annum from the date of filing of the complaint till its realization. The learned District Forum, however, declined the prayer of the complainant regarding compensation on account of loss in the agriculture as the complainants had failed to prove this loss. In addition to the above OPs No.1 and 2 were also directed to pay a sum of Rs.10,000/- as compensation to the complainants in addition to another Rs.1,000/- as costs of litigation. The above directions were to be complied with within a period of 60 days.

6.                    Aggrieved by the said order of learned District Forum, OPs No.1 and 2 have filed separate appeals as mentioned in the opening para of the judgment. The appeals having been taken on board, notices were sent to the respective respondents and record of complaint case was summoned from the District Forum. Sh. Ramesh Chahal, Advocate appeared on behalf of the complainants, Sh. Naveen Sharma, Advocate appeared for OP No.1, Sh. Neeraj Sharma, Advocate appeared on behalf of OP No.2 whereas Sh. Aman Bahl, Advocate represented OP No.3.

7.                    Sh. Neeraj Sharma, Advocate, learned counsel for OP No.2 referred to Annexure A-2 and drew the attention of the Bench to the report of Gopal Krishan, mechanic wherein at Para 3, it has been stated that the tractor takes full load. He then referred to the report of Asha Ram, Fitter at Page 29 and referred to Serials No.1, 2 and 3, which state “pump is absolutely OK and it take full load and does not discharge any smoke etc.” Referring to the report of Raghubir Singh at Page 31 wherein he stated that the tractor self starts after working for some time, he reiterated that the tractor is having no manufacturing defect and the complainants be directed to take delivery of the same and the impugned order be set aside.

8.                    Sh. Naveen Sharma, Advocate, learned counsel for OP No.1 – Dealer submitted that the complaint is only with regard to the manufacturing defect and the dealer has no role in the same. He reiterated that when the complainants brought the tractor to its premises, it was attended to properly and the dealer was not in any way liable for any compensation for the manufacturing defect. He, therefore, prayed that the liability, if any, is that of the manufacturer and the liability imposed vide the impugned order qua OP No.1 – Dealer be set aside.

9.                    Sh. Ramesh Chahal, Advocate learned counsel for the complainants submitted that Para 10 of the order is very explicit and the report at Annexure A-2 clearly brings out that the allegations of the complainants regarding the manufacturing defect in the tractor are true. He also submitted that the learned counsel for OP No.2 had not read the report in totality. He drew the attention of the Bench to the report of Gopal Krishan, Mechanic and read out Serial No.1 and 2, which state “There is a mobile leakage below the timing cover till break pully and it increases when the engine heads up. When the engine heats up, engine switches off and does not start.” He then referred to the report of Phool Singh, Fitter wherein it has been stated “There is a leakage under lift cover. Lift does not work and first gear slips at times”. He also referred to the report of Sh. Raghubir Singh in which he had stated “Battery goes down during the night and the tractor does not start in the morning.” He then finally referred to the report of Sh. Rajbir Singh, which states “Tractor does not starts in the morning. Tractor lift does not work properly. If the engine is switches off after taking load for half an hour  and at 80°C then it does not self start. There is oil leak from front side of the engine and first gear slips at times.” In the end, the learned counsel emphatically submitted that it is a clear case of manufacturing defects in the tractor and the impugned order is very justified, fair and legal.

10.                  At this stage, Sh. Neeraj Sharma, Advocate submitted that the rate of interest granted by the learned District Forum is on the higher side and therefore, the same should be reduced.

11.                  We have gone through the record on file as well as the impugned order and have heard the learned counsel for the parties.

12.                  It is an admitted fact that the tractor in question had been purchased in the year 1994 after making a payment of Rs.1,85,000/- plus Rs.10,000/- for the accessories. It is also admitted that in view of the problems with the engine of the tractor, the engine had been replaced. It is the case of the complainants that inspite of the change of the engine, the problem with the tractor persisted. The tractor had been put to field test on the directions of learned District Forum and after extensive field tests, the report submitted by Haryana Roadways, Narnual very clearly brings out the defects in the tractor in the shape of problems of leakage of oil, self-starting of the tractor, non working of the lift to full capacity and the discharge of battery. These problems have been given by an independent agency and even a report of another mechanical engineer Sh. Satya Paul placed on record by the complainants also corroborates the findings of the independent body. OPs have failed to prove by any cogent evidence that the problems with the tractor arose due to any mishandling of the tractor. Thus, we find that the impugned order is a well reasoned and detailed order and therefore, we have no hesitation in holding the same view as the learned District Forum that the tractor had a manufacturing defect, which could not be rectified by the OPs. We find no merit in the contention of OPs that the complainants are not consumers as the tractor had been purchased for a commercial purpose because admittedly, the complainants are agriculturists and they needed the tractor for earning their livelihood. Thus, this objection of OPs being without any substance is overruled.

13.                  Coming to the pleading of OP No.1 that since it had no role in the vehicle having manufacturing defect, admittedly, the tractor had been purchased by the complainants from OP No.1 and hence, he cannot escape liability of providing deficient service in the form of selling defective good to the complainants. It is between OPs No.1 and 2 to resolve as to whose liability is and to what extent for the payment to be made to the complainants but we find no illegality in the learned District Forum holding OPs No.1 and 2 jointly and severally liable to compensate the complainants.

14.                  Dealing with the issue of rate of interest, it is seen that the rate of interest to be paid on the amount to be refunded is 12% per annum. As per settled law, if the rate of interest directed to be paid is higher than the prevalent rate of interest, then, it includes the award of compensation as well and therefore, the grant of compensation in addition to such rate tantamount to conferment of double benefit, which is not permissible by law.  In this case, we find that the rate of interest to be paid being 12% per annum is not excessive if it is also to include the aspect of compensation for mental agony and physical harassment. Based on the settled law on  this issue, we find that the compensation of Rs.10,000/- directed to be paid by the OPs to the complainants does not stand legal scrutiny and the impugned order to this extent needs to be modified.

15.                  Consequently, both the appeals bearing RBT No.1266 of 2008 (Appeal No.2329 of 2002) filed by OP No.1 and RBT No.1262 of 2008 (Appeal No.2339 of 2002) filed by OP No.2 are partly allowed and the impugned order is modified to the extent that the direction given to OPs by learned District Forum as regards payment of Rs.10,000/- as compensation to the complainants is set aside. Subject to this modification, the impugned order is upheld.

16.                  Copies of this order be sent to the parties free of charge.

Pronounced.

19^th April, 2010

Sd/-

 [JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[MAJ. GEN. S. P. KAPOOR (RETD.)]

MEMBER

Sd/-

[MRS. NEENA SANDHU]

MEMBER

Ad/-