BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.
C.C. No.175 of 2014 Date of Institution: 28.4.2014
Date of Decision: 24.12.2014
Paramjit Singh, aged 55 years, Son of Gurdeep Singh Sandhu, resident of House No.702, Model Town, Phase-I, Bathinda.
....... Complainant
Versus
1. M/S Amar Tractors, Shop No.4, New Green Market, Near Choudhary Da Hotel, Abohar Road, Fazilka, through its Proprietor/Partner/Authorized Signatory.
2. H.M.T. Limited, Pinjore, District Panchkula (Haryana), through its M.D./Chairman.
........ Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
* * * * *
PRESENT :
For the complainant : Sh. Maninder Vohra, Advocate
For the opposite parties : Sh. S.S. Gumber, Advocate
QUORUM
S. Gurpartap Singh Brar, President
S. Gyan Singh, Member
ORDER
GURPARTAP SINGH BRAR, PRESIDENT:-
Brief facts of the complaint are that the complainant had purchased HMT Tractor, Model 6522/PS Terbu 65 HP, manufactured by
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opposite party No.2 from opposite party No.1 vide bill No.12 dated 18.5.2013 for a sum of Rs.6,80,000/-. Opposite party No.1 had also provided one year guarantee in case of any defect in the said vehicle. Further it has been pleaded that the said vehicle did not work properly, rather, has been creating problems from the very first day of purchasing the aforesaid tractor. The tractor in question started creating problems in functioning and within one month from the date of purchasing the said tractor, the complainant got the Slime, Piston and Ring of the kit replaced with new one form opposite party No.1 on 13.6.2013, but the vehicle did not work properly. Then on the same day i.e. 13.6.2013, the Radiator of the vehicle was also changed by opposite party No.1, but even thereafter, the tractor did not work properly and continued giving problems in functioning and on 2.8.2013 and 3.8.2013, the complainant again took the tractor in question to the workshop of opposite party No.1. After checking the tractor, changed the Hyd. Lill Pump and Hyd. Power Gear and Hyd. Pump Shaft of the tractor in question. Further it has been pleaded that the complainant was visiting the office of opposite party No.1, but opposite party No.1 did not pay any heed to the requests of the complainant. The complainant also got issued a legal notice dated 13.11.2013 upon opposite parties through Shri Raj Bhupinder Singh Sidhu, Advocate, Bathinda. The opposite parties did not pay any heed to the requests of complainant, rather,
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opposite party No.1 sent a reply to the said notice on 23.11.2013, but despite that the tractor was still not working properly, because of manufacturing defects in it. Pleading deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has prayed that the opposite parties be directed to replace defective tractor with new one or in the alternative, to refund the amount of Rs.6,80,000/-. Further a sum of Rs.50,000/- has been claimed as compensation for harassment and Rs.11,000/- as litigation expenses.
2. Upon notice, the opposite parties appeared and filed their respective written replies to the complaint. Opposite party No.1, in its written reply, has pleaded that the complainant in his complaint himself has admitted that opposite party No.1 provided service and replaced the parts of the tractor in question without any cost/charges whenever the complainant complained about the same to opposite party No.1 and even in reply to the notice of complainant, opposite party No.1 has showed his readiness and willingness to remove each and every problem whenever reported by the complainant. Further it has been pleaded that opposite party No.1 is still ready to remove each and every problem, if any, in the tractor in question within warranty period. Opposite party No.1 provided him complete service to the complainant as per his requirement and satisfaction. Moreover, the tractor in question had completed 995 working hours on
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26.3.2014, which is evident from the Job Card, so placed by the complainant himself on the case file, which means till the date of institution of the present complaint, the warranty period of 1000 working hours of tractor in question must have been expired. Other allegations of the complaint have been denied and dismissal of the complaint has been prayed for.
3. In its written reply, opposite party No. 2 has pleaded that as per provisions of Section 14 (1) (d) of the Consumer Protection Act, 1986, the compensation can be awarded to the complainant for any loss or injury suffered by the complainant due to the negligence or opposite party, but the complainant has miserably failed to establish any kind of negligence as well as deficiency on the part of opposite party No.2, on the record. Further it has been pleaded that the complainant used to run the tractor after removing air filter from the tractor in question in violation of the guidelines of the company. The complainant has been using the tractor in question for commercial purpose. He has been using the tractor at a brick-kiln, where the tractor is used for collecting soil, raw bricks, and to carry metalled bricks by putting overload regularly over the tractor in question. Further it has been pleaded that before any tractor is launched in the market, it has to undergo several processes of statutory (Government) approvals and compliances apart from internal research and development. All the tractors
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manufactured by opposite party No.2 are duly approved by the appropriate authority of Government of India (ARAI). The tractor in question has also undergone all the checks and on then FCOK (Final Check Ok) was given by opposite party No.2 before dispatching it to its authorized dealer. Opposite party No.1 provided full service to the complainant on behalf of opposite party No.2. After receiving the reply by opposite party No.1 to the notice of complainant, complainant brought the tractor in question at service center of opposite party No.1 on 26.3.2014 and got the tractor serviced from opposite party No.1 and opposite party No.1 provided complete service to the complainant as per his requirement and satisfaction on behalf of opposite party No.2. Other allegations of the complaint have been denied and dismissal of the complaint has been prayed for.
4. Learned counsel for the complainant tendered into evidence Ex. C-1 to Ex.C-16 and closed complainant evidence on behalf of the complainant. On the other hand, learned counsel for opposite party Nos.1 & 2 tendered into evidence Ex. OP-1 & 2/1 to Ex. OP-1 & 2/3 and closed evidence on behalf of opposite party Nos. 1 & 2.
5. We have heard the learned counsel for parties and have also gone through the file.
6. Purchase of the tractor in question, manufactured by opposite party No.2, by the complainant from opposite party No.1, has been
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admitted. The grievance of the complainant is that due to manufacturing defect in the tractor in question, it started creating problem in functioning within a period of one month from date of its purchase and the tractor in question is still not working properly despite replacement of major parts and repair by the opposite parties. The opposite parties have pleaded that the complainant has not been using the tractor in question according to guidelines provided by the opposite parties, but no evidence has been produced by the opposite parties to prove their assertion that the complainant has not been using the tractor in question according to guidelines provided by opposite parties and has violated the terms of warranty. No evidence has been produced by opposite party No.1 to prove that the complainant has been using the tractor in question for commercial purpose. Admittedly, the opposite parties provided service and replaced the parts of tractor in questions without any cost/charges, whenever the complainant complied about the same to the opposite parties, but no job card has been produced by the opposite parties to prove that the complainant was satisfied that the service or replacement of the parts of tractor in question by the opposite parties. Affidavit of Kewal Krishan Kamboj and Rohtaj Singh, placed on record by the opposite parties as Ex. OP-1 & 2/1 and Ex.OP-1 & 2/2, respectively, cannot be considered as supporting the version of opposite party No.2. Verification of the affidavit
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is also not proper. The contents of the written replies of the opposite parties have not been stated in the affidavits and those were not verified to the knowledge of the deponents. Similar precedent has been laid down by the Hon’ble State Commission, Punjab, Chandigarh in “Tarlok Singh Versus Punjab State Electricity Board and Others”, 2004 (1) CPC 303. Moreover, to prove his case, the complainant has also produced expert opinion Ex.C-16 given by one Gurcharan Singh of Gyani Tractor Repair Works, Bathinda, wherein the said expert has mentioned that he has been working as the Tractor Mechanic with Gyani Tractor Repair Works, Bathinda, for the last 27-28 years and owner of about 100 tractors of different types are connected with him for repair of their tractors; and tractor HMT bearing registration certificate No. PB-03-AF-6967 has also been connected with him since its purchase. The said tractor started heating since its purchase, first of all company had replaced its radiator in his workshop and thereafter 10 days, the tractor ceased, upon which the company replaced its cylinder, but despite all this, the said tractor did not stop heating. The said expert has pointed out certain other defects in the tractor in question and ultimately opined that there is a major mechanical defect in the said tractor and it seems that the company had sold the old tractor by re-painting it not worth plying. This expert opinion has not been controverted by the opposite parties in an unequivocal terms. The said
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expert has not been subjected to cross-examination by the opposite parties. Therefore, the version of complainant has been proved with the expert opinion produced on the file by complainant as Ex.C-16. Even otherwise the occurrence of the defects time and again in tractor in question and thereafter failure of the opposite parties to remove the defects despite replacement of parts reveals that there is some manufacturing defect in the tractor in question. The opposite parties have wrongly pleaded that the complainant has not used the tractor in question as per the guidelines provided by the opposite parties. The act and conduct of the opposite parties amounts to deficiency in service as well as unfair trade practice on the part of the opposite parties. The opposite parties are liable to replace the tractor in question with new one tractor of the same make and model besides payment of litigation expenses to the complainant.
7. In view of the above discussion, this complaint is accepted and the opposite parties are directed to replace the tractor in question with new defect free tractor of same make and model with complete documents required for its registration with the registering authority. The opposite parties are further directed to pay a sum of Rs.5000/- as litigation expenses to the complainant. This order is directed to be complied with jointly and severally by the opposite parties within a period of thirty days from the date of receipt of a copy of this order. The complainant is also directed to
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handover the tractor in question at the time of delivering the new defect free tractor of same make and model by the opposite parties, as ordered above. File be consigned to the record room.
Announced
24.12.2014
(Gurpartap Singh Brar) President
(Gyan Singh) Member
