Judgment

Shri A.K.Patra,President:

1. This complaint has  filed this complaint alleging manufacturing defects in  the purchased machine i.e New Rotavator and further alleged deficiency in service  & unfair trade practice on the part of the Ops for selling of a defective machine and for non replacing of said  defective Rotavator with new one.
2.  The complainant seeks for the following relief(s) :-

1. That O.P  be directed to provide a new Rotavator instead of the aforesaid faulty Rotavator or refunds of invoice amount.
2. That, the  O.P further be directed to pay sum Rs.40,000/- only towards  compensation for suffering mental pain and pecuniary loss.
3. The O.P  be further directed to pay sum of Rs.10,000/- only towards cost of litigation.
4. Any other reliefs the Hon’ble Commission  may dim fit and proper.

3. The facts of the complaint in brief is that, the complainant had purchased a Rotavator for his agriculture purpose  vide invoice bill No.-KE/2022-23/007 on  dt.12.05.2022 for Rs.65,000/-Rupees Sixty Five Thousand) only form the opposite party vide Bill No.SI,KE/2022-23-007, Dt.12.05.2022 but  to the unfortunate of the complainant on Dt. 12.05.2022, said Rrotavator did not function properly when it was working in the agriculture filed and its suddenly stopped working due to the fault of auto cut and as such complainant informed to the opposite party on the same date It was  taken to the Rotavator  service provider i.e M/S Ganpati Engineering Co. Bhawanipatna, as well as reported  the matter to the  O.Ps who  assured the complainant to  do the needful within 7 (seven) days and asked to come after 7 (seven) days to bring a  new Rotavator. Being an honest customer, the complainant believed the words of the O.Ps. and  visited the shop of the opposite party after 7(seven)  days and asked about the Rotavator, The OP told the complainant it’s a issue of manufacturing defect and that, they have mailed the  problem to company but till date they have not received any type of reply form the company Agriona Industrial Pvt. Ltd/op-1for  replacement or repairing of the Machine. A few days thereafter, the complainant repeatedly enquired to know whether his Rotavotor got repaired and wait for the mail, but the O.P deferred the matter with some plea or others. And that, when the complainant did not get relief in-spite of his having genuine & legal approaches  to the O.P and  as the said Rotavator was neither handed over to him with necessary repair nor replaced  with a new one as on date ,he suffered financial loss & mental agony . It is further stated that, from the date of purchase of Rotavator the complainant facing trouble and mentally depressed because the season is going on but no action has been taken from the company as well as dealers. After several request by the complainant about the Rotavator, O.P told him that, they are unable to do anything as because company not responding to provide any service/refund/exchange support to him. It is further contended that,  the O.P did not provide proper service to the complainant causing financial loss and mental agony as such the opposite party is liable to compensate the complainant and also the complainant is entitled to get all legal benefits available under the provision of consumer Protection Act i.e  replacement of defective machine with a new one or refund of the price of the machine with interest and further entitled for compensation towards suffering of pecuniary loss &  mental agony along with litigation cost .Hence this complaint .
4. On being notice the O.Ps appeared and filed their written version denying the complaint allegation on all its material particulars along with documents in support of their claim have taken into records.
5. The O.P No.1 (One) appeared virtually and submitted their written version as follows:-“This is for your kind information, the Rotavator Tiller we have sold to M/S Kritibidhan Enterprises that is 3 Years back last billing done on date is 20 June 2020 ,he did not paid our dues Rs.15,32,100.86 laces and we have taken legal action against him cheque bounce. Also the material supplied in June 2020 our warranty policy is six month after sale that is standard policy of industry is six Month  only can verify it form any competitor. This notice is seems that this complaint is done intentionally this party M/S Kritibidhan Enterprised is fraud, he his cheated many companies in Punjab he done fraud approximate 5 Corer and once any one take action he did send so , kindly review this case and cancel this complaint.”
6. The O.P No.2 (Two) appeared and submitted their written version admitting the facts that, on  dt.25.05.2022 the O.P 2 have received one Rotavator form complainant for servicing due to not working. It is further submitted that, Kritibidhan Enterprised is  only a Dealer of O.P No 1 Agriona Industrial Private Ltd.and M/S Ganpati Engineering Co. is authorised Service provider of Agriona Industries Pvt. Ltd. As a dealer they are not authorised to service of the Rotavator. The company has not authorised the KRITIBIDHAN ENTERPRISE/OP No.2 for providing any service to the purchaser . So they have not mailed this issue to company service provider for servicing, but neither company nor service provider provide satisfied report. The company has not respond to any service related issue. It is further submitted that, over telephone they got the message that the O.P No.1 cannot replace the Rotavator but assured to provide proper service to the complainant and to handed over the machine for their use in the agriculture field .The Ganpati Engineering Co. is only service provider of Agriona Industries Pvt. ltd./O.P No.1 and the O.P No.2 Kritividhan Enterprised is only the dealer who is authorised by O.P No.1 to sale the Rotavotor only. Any manufacturing defect in the said Rotavotor will be repair by the authorised service provider i.e. GANAPATI ENGINEERING CO who is a separate branch of O.P NO.1 and the O.P No.2 is not at all responsible to provide any after sale service. For approval of service issue the, final authorities is AGRIONA INSDUSTRIES PVT. Ltd./O.p No.1 , so in this case any service warranty or replacement guarantee will be solely lies by AGRIONA INDUSTRIES PVT.LTD./O.P NO.1.With this averment the O.P No.2 pray to dismissed the case against the O.P with cost. To substantiate their claim the O.P No.2 has file the copy of Agreement for Service executed on dt.10.09.2019 is taken in to record.
7. Complainant is remaining absent on the date fixed for hearing. However, in view of Section 38(3)(c)  of C.P.Act,2019 case record taken up today to decide the complaint on merit on being heard the ops.
8. Perused the material available on record. We have gone thoroughly  the contention of the both the parties  and have our thoughtful consideration over the material  placed in the record.
9.  To substantiate his case, the complainant has filed copy of Tax invoice vide No.KE/2022-23/001 dt.12-May-22, Copy of Email send by the Ganpati Engineering Col Ltd. (O.P 2) to the O.P No.1 Agriona Industries Ltd. Which contain:- “we found the problem of the Rotavator is a manufacturing defect” The complaint averment is support by an affidavit of the complainant.
10. As per Sec.38(6) of C.P.Act,2019 every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record ; as such it casts an obligation on the District Commission to decide the complaint on the basis of evidence brought to its notice by the complainant and the service provider/seller, irrespective of whether the service provider/seller adduced evidence or not. The decision of the District Commission has to be based on evidence relied upon by the complainant. The onus thus is on the complainant making allegation.
11. No evidence on affidavit as prescribed in C.P. Act 2019 is adduced by the complainant. The photo copy of documents filed by the complainant along with his complainant petition without  authenticated by fundamental evidence that, the photo copy is in fact a true copy of the original may not be accepted as evidence,(Reliance placed on the ratio of judgement of Honourable Supreme Court in M.Chandra Vrs. M. Thangamuthu & another ,reported in 2010(ii) CLR (SC) 746 :(2010) 9 SCC 712 ) .Here the  complainant has failed to adduce any cogent evidence  to substantiate his claim.
12. Law is well settled that, onus lies on the complainant to prove by cogent and adequate evidence supported by expert opinion that, the machine suffered from inherent manufacturing defect and unless that onus is satisfactorily discharged, liability of manufacturer could be limited only to the removal of defects only by replacement of part.
13. Since, admittedly there is no expert evidence produced by the complainant before this Commission who also failed to undertake exercise of asking for expert opinion as required of it by law. As such, we are unable to hold that ,the vehicle suffered from inherent manufacturing defect liable to be replaced with a new one or else complainant is entitle  for refund of the price of the vehicle.
14. Law is well settled that, complainant is to prove deficiency in service as alleged against the Ops but here the complainant failed to prove any negligence & deficiency of service on the part of the Ops.
15. Based on above facts & circumstances and settled principle of law, we are of the opinion that this complaint sans merits. Hence, dismissed against the OPs on contest. However, no order as to cost.
16. Pending application if any is also stands disposed off accordingly.

  Dictated and corrected by me.

President

I   agree.

Member    

 Pronounced in the open Commission today on this   12^th day of April 2023 under the seal and signature of this Commission. Pending application if any is also stands disposed off accordingly.

The judgment  be uploaded forthwith in the website of the Commission and  free copy of this order be supplied to the respective parties or they may download the same from the Confonet  to treat the same as copy of the order received from this Commission