CC Filed on 12.12.2008<br /> Disposed on 24.03.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.<br /> <br /> Dated: 24th day of March 2010<br /> <br /> PRESENT:<br /> Sri. G.V.HEGDE, President.<br /> <br /> Sri. T.NAGARAJA, Member.<br /> Smt. K.G.SHANTALA, Member.<br /> ---<br /> <br /> Consumer Complaint No. 121/2008<br /> <br /> Between:<br /> <br /> <br /> Chowdareddy,<br /> S/o. Subbareddy,<br /> Aged about 89 years,<br /> R/at Alegurukee Village,<br /> Dibburahalli Post,<br /> Siddalaghatta Taluk,<br /> Chikkaballapur District.<br /> <br /> <br /> (By Advocate Sri. Raghavendra.S & others ) <br /> <br /> <br /> <br /> <br /> <br /> <br /> ….Complainant<br /> <br /> V/S<br /> <br /> <br /> 1. Bhavani Motors,<br /> B.B. Road, N.H. 7, <br /> Chikkaballapur – 652 101,<br /> Represented by its Manager.<br /> <br /> <br /> 2. Sonalika International Tractors Ltd.,<br /> Pankaj Plaza, No.1, Plot No.2,<br /> Karkardooma Community Center,<br /> Commercial Complex,<br /> Delhi – 110 092.<br /> Represented by its Director.<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> ….Opposite Parties<br /> <br /> ORDERS<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite parties to return to complainant Rs.5,78,000/- representing the price of tractor, trailer and agricultural implements with interest at 18% p.a. from the date of purchase and to pay compensation of Rs.5,00,000/- with costs, etc.,<br /> <br /> 2. The material facts of the case of complainant may be stated as follows:<br /> That the complainant has been cultivating 70 acres of agricultural lands belonging to his family. He attended an exhibition conducted by Government of Karnataka arranged for agriculturists. In the exhibition he got the list of empanelled firms for supply of approved model of tractors eligible for government subsidy. The complainant made up his mind to buy Sonalika International DI 740 model tractor which was one of the recommended tractors approved by the Government. OP.2 was the manufacturer of the said tractor and OP.1 was the authorized dealer of that tractor under OP.2 doing business at Chikkaballapur. The complainant also intended to purchase trailer and other agricultural equipments for the purpose of cultivation of lands. OP.1 was also dealing in trailer and other agricultural equipments. <br /> <br /> OP.1 gave the quotation dated 16.08.2006 quoting the prices of tractor and trailer and other agricultural equipments, the total of which was Rs.5,78,000/-. The complainant applied for loan with S.B.M, Chikkaballapur Branch for purchase of tractor and trailer. A sum of Rs.5,20,000/- was sanctioned by the Bank as loan with certain terms and conditions. The complainant paid margin money of Rs.58,000/- from his pocket. The loan amount and margin money was paid to OP.1 towards the price of tractor, trailer and implements. OP.1 delivered the tractor and trailer on 29.08.2006. It is alleged that OP.1 did not deliver the implements mentioned in the invoice to complainant and he was assured by OP.1 that those implements would be delivered later. It is alleged that subsequently OP.1 did not deliver those implements inspite of repeated requests.<br /> <br /> It is alleged that the tractor was not giving the required mileage, the engine was getting overheated and the tractor would stop in the middle of the work, there was oil leakage and huge high engine rise. It is alleged that the complainant left his tractor on 07.11.2006 at the service station of OP.1 for rectifying the above said problems. When OP.1 told the complainant that the problems were attended, he took back the tractor to his village which was about 100-110 kms. from the service station of OP.1. On the very next day the same complaints again reappeared. The complainant once again informed OP.1 and in turn OP.1 told that he would secure Service Engineer from OP.2 to attend the defects and to leave the tractor in the service station. The complainant again traveled back to the service station of OP.1 for attending the defects. Further that on 16.12.2006 OP.1 attended second service of the tractor and told that the defects were rectified. Again the complainant noticed the same problems when the tractor was put to use in the field. The OP.1 and 2 did not bother to attend the complaints. On 20.06.2007 the complainant brought the tractor to the service station of OP.1 with same defects. Again OP.1 told that the defects were cured but when the complainant took the tractor he found the same defects and left it in the service station on 01.07.2007. Again the tractor was left to the service station on 18.07.2007 with same complaint. This time the tractor was left in the service station for 5 months. On 10.12.2007 one Service Engineer by name Mahantesh sent by OP.2 inspected the vehicle and on 11.12.2007 he told that the defects were rectified and there would be no problems in future. The Service Engineer had dismantled the entire engine to attend the defects and the complainant had taken photographs at that time. It is alleged again in February 2008 the tractor was suddenly stopped while on the field at the time of ploughing. Again it was taken to the service station of OP.1 and the complainant took back the tractor on the say of OP.1 that the defects were cured. It is alleged the defects were again noticed when the tractor was put to use. The complainant approached OP.1 several times but he did not bother to listen the complainant and on 27.02.2008 OP.1 gave an endorsement that on 18.03.2008 the Service Engineer of OP.2 would come to attend the complaints. It is alleged inspite of it none attended the defects of the tractor. The complainant has alleged that the defects in the tractor are inherent defects amounting to manufacturing defects. Therefore he claims the return of price of the tractor. The complainant has alleged that he sustained huge loss as the tractor could not be put to use during agricultural seasons and he alleged that he had to pay huge amount towards interest and principal to the Bank from where he obtained finance. He stated that he got subsidy of Rs.60,000/- from government which was directly credited to the Bank towards discharge of outstanding loan and interest. <br /> <br /> 3. OP.1 appeared and contested the proceedings. OP.1 admitted that the complainant has purchased the tractor, trailer and implements from him as per quotation dated 16.08.2006 and he delivered all the items shown in the quotation. Further he contended that on the same day after receipt of delivery of the tractor, trailer and implements, the complainant expressed that he was not in need of agricultural implements and other kits worth Rs.53,000/- shown in the quotation and told OP.1 to pay the price of it and accordingly OP.1 returned Rs.53,000/- along with discount of Rs.12,000/- to complainant. Further he contended that for the total sum of Rs.65,000/- he issued cheque No. 886715 dated 22.08.2006 drawn on Canara Bank, Chikkaballapur and obtained the voucher for having delivered that cheque to complainant’s son, who was present during the entire transaction, representing the complainant and the said cheque has been encashed. <br /> <br /> OP.1 has further contended that at the time of delivery of goods the products were checked and the performance of them were found perfect and thereafter they were delivered to complainant. He contended that the complainant utilized the products without following the warranty conditions. <br /> <br /> Further he contended that complainant had complained regarding the function of tractor and then an authorized agent/mechanic by name Manthesh and one Parusharam came from New Delhi went to the village of complainant and rectified the defects in the tractor on 10.12.2007 and 11.12.2007. The complaints in the tractor were excess fuel consumption in field work, excess heat in field work and Hydraulic Hunting and these defects were rectified. The OP.1 did not say anything regarding the averments made by complainant that he had taken the tractor to the service station of OP.1 on several dates for rectifying certain defects. OP.1 has further contended that the complainant came with false allegations with intend to extort money from OPs by blackmail. <br /> <br /> 4. OP.2 appeared and contested the complaint. OP.2 contended that it does not directly deal with any customers and it deals only with its dealers on principal to principal basis. Further it contended that it is the manufacturer of Sonalika Tractors with standardized techniques and quality control system of ISO – 9001 and 14001 and after proper test and quality check the tractors are sent to its concerned dealers for sale. Further it denied any manufacturing defects in the tractor. It contended that the complainant took his tractor for regular service and to attend minor ware and tear and the service station of OP.2 attended the jobs properly to the satisfaction of the complainant and also contended that in respect of complaint regarding excess fuel consumption, excess heat and hydraulic hunting, the tractor was checked on 10.12.2007 and on 11.12.2007 and the defects were rectified to the satisfaction of the complainant and the complainant signed the satisfaction note in this regard. Further it contended that the tractor was purchased in August 2006 and hence the complaint is barred by limitation. Therefore it prayed for the dismissal of the complaint.<br /> <br /> 5. The complainant and OP.1 filed affidavits in support of their respective contentions. The complainant filed service job cards and some other documents. The OPs did not produce any documents. <br /> <br /> 6. One Mathews Jacob, a Mechanical Engineer is appointed as Commissioner. He submitted his report dated 03.02.2010 after inspection of the tractor in question. The complainant has submitted no objection to the commission report. The OPs remained absent and they did not file any objection to commission report. <br /> <br /> 7. We heard the Learned Counsel for the complainant. The OPs or their Advocates remained absent, therefore they could not be heard. <br /> <br /> 8. The following points arise for our consideration:<br /> <br /> Point No.1: Whether the complaint is barred by time?<br /> <br /> Point No.2: Whether complainant proves that there is manufacturing<br /> defect in the tractor which entitles him to claim return<br /> of the price paid for tractor?<br /> <br /> Point No.3: If point no.2 is held in affirmative who should return<br /> the price of tractor to complainant. <br /> <br /> Point No.4: Whether the complainant is entitled to <br /> any compensation?<br /> <br /> Point No.5: To what order?<br /> <br /> <br /> 9. After considering the records and the submissions of complainant our findings on the above points are as follows:<br /> Point No.1: The complainant purchased the tractor on 29.08.2006. The complaint is filed on 12.12.2008. The cause of action for the complaint arises on the date when the manufacturing defects could not be rectified by the service provider of manufacturer. The case of complainant is that evenafter the efforts by Service Engineer on 10.12.2007 and 11.12.2007 the defects continued oftenly and again on 27.02.2008 the complainant approached OP.1 with request to cure the defects and OP.1 gave an endorsement that some Service Engineer would come on 18.03.2008 for attending the complaints, but no one came to attend the defects in the tractor. Therefore we think the complaint is well within the time. The contention of OP.2 that the cause of action of arises from the date of purchase of the tractor is not correct. For the above reasons we hold point No.1 in negative.<br /> <br /> Point No.2: We think the report of the Commissioner should given much importance to decide whether there was manufacturing defects in the tractor. In the present case, a qualified person is appointed as Commissioner. He is a Diploma holder in Mechanical Engineering pertaining to automobile technology course. He claims that he successfully completed automobile technology in the year 1992-93 studying at Oxford Polytechnic at Bangalore. Further he claims that thereafter he has been running and maintaining automobile workshop and service centre and undertaking repair works of various motor vehicles and tractors. He claims vast experience in all types of automobiles. He issued notices to parties before inspecting the tractor. On 18.01.2010 he inspected the tractor. He stated that during his inspection he put the tractor for various tests and trails noted in his report. The conclusion of the Commissioner after various tests and trails is as follows:<br /> 1. The engine of the tractor overheats when put to the purpose it was bought for.<br /> 2. The hydraulic system fails when the accessories are put in for ploughing.<br /> 3. The radiator tends to boil over spilling out the coolant in it, thereby making the engine block starved of cooling water.<br /> 4. Low mileage/high diesel consumption.<br /> <br /> He stated his conclusion in para.10 of his report which is as follows:<br /> <br /> “To conclude, the tractor in its present condition is not in a good running condition and cannot be used for the purpose for which it was bought by the complainant. Ploughing the lands by this tractor will take an enormous amount of time and effort on the part of the cultivator. There will be a very high consumption of fuel and a similar amount of unnecessary pollution of unburnt fuel. These defects would result in consequential damages of an over heating engine, abnormal and untimely wear and tear of moving parts of the tractor”. <br /> The parties have not filed any objection to the commission report. Therefore the commission report remains as an important piece of evidence. <br /> <br /> The complainant took the tractor to the service station of OP.1 on 07.11.2006, 16.12.2006, 20.06.2007, 01.07.2007, 18.07.2007 & 27.02.2008 and the complainant has produced service job cards relating to these dates. The service job cards dated 07.11.2006 and 16.12.2006 do not show any major complaints of customer. We think the complaints of customer on 20.06.2007 that “check head gasket, low mileage” were also not so material. On the same day he had also complained regarding hydraulic problem. On 01.07.2007 the main complaint of the customer was regarding hydraulic system and overheating. On 18.07.2007 the complaints of customer were overheating and boiling, engine noise, engine vibration. On 27.02.2008 the same complaints were made by customer. The number of machine hours recorded on different dates when the tractor was taken to service station as noted in the job cards are as follows. <br /> Date No. of machine hours<br /> 07.11.2006 159 hrs.<br /> 16.12.2006 260 hrs.<br /> 20.06.2007 719 hrs.<br /> 01.07.2007 761 hrs.<br /> 18.07.2007 807 hrs.<br /> 27.02.2008 888 hrs.<br /> <br /> On the date of inspection i.e. 18.01.2010 by the Commissioner the no. of machine hours was 990.4 hrs. The tractor was purchased on 29.08.2006. The complainant has stated that the distance between his village and service station of OP.1 at Chikkaballapur is about 100 to 110 kms. The complainant had taken the tractor for service and for repairs on several dates to the service station of OP.1. The complainant has alleged that for certain complaints he left the tractor in the service station on 18.07.2007 and it was not repaired nearly for a period of 5 months and only on 10.12.2007 the Service Engineer came and attended it on 10.12.2007 and 11.12.2007. But OP.1 contended that the Service Engineers were sent to the village of complainant on 10.12.2007 and 11.12.2007 for attending the repairs. But OP.1 does not specifically deny that the tractor was not repaired for a period of 5 months. As already noted OP.1 does not deny that the tractor was brought on several dates with certain complaints to the service station. Considering the number of work hours turned out from the tractor for a period of 1½ years, one can say that the tractor could not be put to its normal use. The complainant had also complained the major problems of low mileage, engine over heating, high engine rise and the tractor stopping in the middle of the work, etc., on several occasions when he took the tractor to the service station of OP.1 during this period of 1½ years. Considering these facts along with the report of Commissioner we hold that there was manufacturing defect in the tractor, entitling the complainant to claim return of price paid to it. Hence point No.2 is held in affirmative. <br /> <br /> Point No.3 & 4: The complainant has alleged and also stated in his affidavit that OP.1 had not delivered the implements and kits shown in the quotation. In reply to it OP.1 had contended that he had returned the price of it as desired by complainant along with discount of Rs.12,000/-. Further he stated that totally he paid Rs.65,000/- through cheque and that cheque was encashed by complainant. The pleading of complainant was silent regarding this payment of Rs.65,000/- alleged by OP.1. Therefore the complainant’s son who used to attend this Forum in this case was secured and questioned. Then he admitted that Rs.65,000/- was received from OP.1 through cheque in lieu of implements and kits. The complainant also requested for return of the price of the trailer. We think the complainant has not made any good grounds for claiming return of the price of trailer. <br /> <br /> OP.2 has contended that he was supplying the tractors to OP.1 on principal to principal basis. But nothing is produced to prove that contention. Therefore we hold that OP.1 was the dealer under OP.2. <br /> <br /> The value of tractor shown in the quotation is Rs.4,15,000/-. OP.1 has given discount of Rs.12,000/-. Therefore the net value of the tractor may be taken at Rs.4,03,000/-. This amount of Rs.4,03,000/- is to be returned to the complainant by OP.1 and 2. It cannot be ascertained from the records how much amount out of it was paid by OP.1 to OP.2 towards the price of tractor. Therefore we are not in a position to apportion the liability of OP.1 and 2 in this regard. <br /> <br /> The complainant claims that he should also be granted interest at 13% p.a. the rate at which he has been charging by the Bank. We think for certain period the complainant must have used the tractor for his agricultural work considering the number of work hours turned out from the tractor. The complainant also received subsidy of Rs.60,000/-. Therefore we think OP.1 and 2 may be saddled with interest at 6% p.a. on Rs.4,03,000/- from the date of sale of tractor i.e. 29.08.2006. <br /> <br /> The complainant claims that he was put to heavy loss because of the defective tractor as he could not carry out the agricultural operations in time. It can be seen that he himself did not take the agricultural implements purchased along with tractor. This shows that he had some other alternative arrangements or he was not intending to use the tractor purchased for agricultural purpose. Therefore we think for the alleged loss of income from agriculture cannot be granted separately in this case, apart from awarding the interest stated above. For the above reasons we think OP.1 and 2 may be directed to repay Rs.4,03,000/- representing the price of tractor with interest at 6% p.a. on it from 29.08.2006 till the date of payment. Hence points No.3 & 4 are held accordingly. <br /> <br /> Point No.5: Hence we pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint is partly allowed with costs of Rs.1,000/-. OP.1 & 2 shall jointly and severally return to the complainant Rs.4,03,000/- (rupees four lakh and three thousand only) with interest at the rate of 6% p.a. on the said amount from 29.08.2006 till the date of payment, within 45 days from the date of this order. <br /> <br /> On payment of the above said amount the complainant shall return the tractor to OP.1/OP.2.<br /> <br /> As between OP.1 and 2 the extent of their respective liability shall be in proportion to the share they received out of Rs.4,03,000/-.<br /> <br /> Dictated to the Stenographer, corrected and pronounced in open Forum this the 24th day of March 2010.<br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br />