Punjab

StateCommission

A/11/509

M/s International Tractors Ltd. - Complainant(s)

Versus

Budh Singh - Opp.Party(s)

Suvir Sehgal

12 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

First Appeal No. 509 of 2011

 

                                                Date of Institution :  18.03.2011.

                             Date of Decision    : 12.02.2015.

 

M/s International Tractors Limited, Village Chak Gujran, Post Office Piplanwala – 146022, Jalandhar Road, Hoshiarpur (Punjab) through its Chief Factory Manager-cum-Assistant General Manager, Sh. Malkiat Singh.

                                                     …..Appellant/opposite party no.2

Versus

 

1.      Budh Singh son of Sh. Banta Singh, resident of Village Manguwal,          Tehsil and District Ropar.

                                                         ….Respondent No.1/complainant

2.      M/s New Saini Automobiles, near Bhatha Sahib Chowk,          Chandigarh Road, Ropar.

                                  ….Respondent No.2/opposite party No.1

    

Appeal against order dated 04.02.2011 passed by the District Consumer Disputes Redressal Forum, Ropar.

 

Quorum:-

 

     Shri J. S. Klar, Presiding Judicial Member.

             Shri Vinod Kumar Gupta, Member.     

Present:-

 

     For the appellant                      :     Sh. Survir Sehgal, Advocate

For the respondent No.1 :     Sh. H.K. Brinda, Advocate

For the respondent No.2 :     Service dispensed with.

   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                 

                    The appellant (opposite party no.2 in the complaint) has preferred this appeal against the respondents of this appeal (respondent no.1 in the appeal is complainant in the complaint and respondent no.2 in the appeal is opposite party no.1 in the complaint) challenging order dated 04.02.2011 of District Consumer Disputes Redressal Forum Ropar (in short, “the District Forum”), accepting the complaint of Budh Singh respondent no.1 of this appeal and directing the OP No.2, the present appellant, to refund the amount for purchase of tractor to complainant of Rs.4,90,000/- besides Rs.5000/- on account of compensation and Rs.1000/- as litigation expenses and further giving the direction to the complainant to deposit the tractor in question and to execute requisite documents for transfer of ownership thereof in favour of OP No.2.

2.           The complainant Budh Singh has filed complaint under Section 12 of Consumer Protection Act 1986 (in short "Act") against the OPs, on the averments that he purchased Sonalika DI750III model tractor from OP No.2 for price of Rs.4,90,000/- by financing the amount of Rs.4,20,000/- by OP No.1 and withdrawing the amount of Rs.55,000/- from bank limit and by giving Rs.15,000/- from his own house. OP No.1 assured the complainant at the time of purchase of tractor that it was free of any defect. That in case any defect arose within 18 months, then the defective part thereof would be replaced free of cost or the tractor would be replaced. That after some time, the tractor failed to lift load and started stopping after loading and complainant brought this fact to the notice of OP No.1, who did repair work therein and assured the complainant that tractor would properly lift the load thereafter and in case it failed to lift the load, then it would be replaced. That after two months of purchase, the self of the tractor was burnt and then complainant approached OP No.1, who sent the tractor of complainant to its sub-agency Ghanauli, where the mechanic of the OPs removed the self and installed an old self by stating that new self would be installed as and when it became available. The tractor continued giving the problems after one month of failing to lift load and stopping after taking load, the wiring went out of order, four nozzles have struck, front tirades became feeble (Ghas Gaye) after purchase of three months, meter have stopped to work and it issued smoke. The complainant approached OP No.1 at their office/service station at Ghanauli and complainant was sent to Ropar, where he went for three times, but OP No.1 failed to put the tractor in order. The complainant found that the pump of the tractor is old and there were no nuts of Enola. That the tractor had manufacturing defects from the very beginning from the date of its purchase and it did not function satisfactorily. The complainant has filed the consumer complaint directing the OPs to replace the tractor of the complainant or in alternative to refund the amount of Rs.4,90,000/- along with interest @12% p.a. from the date of its purchase till its actual payment and to pay Rs.1,00,000/- as compensation for mental harassment and to refund the charge of service received by the OP No.1, in lieu of free service besides Rs.10,000/- as costs of litigation to him.
3.           Upon notice, OP No.1 appeared and contested the complaint of the complainant by filing its separate written reply raising preliminary objections that complaint is not maintainable in the present forum and is without cause of action. Status of complainant as a consumer was disputed and the territorial jurisdiction of the District Forum Ropar to entertain the complaint was also disputed by OP No.1. On merits, it was not disputed that complainant purchased the tractor. Rest of the averments of the complaint was not admitted by OP No.1. It was further pleaded that complainant is a desperate person and created violence in the agency of the OP No.1 under the influence of liquor many times accompanied by 4-5 persons. The complainant has woven false story in this case. It was further submitted that in the month of April 2010, a new self was installed in the said tractor and Hardial Singh son of the complainant got the said tractor repaired by giving letter to OP No.1 on 27.04.2010 expressing satisfaction therewith. That there is no expert report obtained by the complainant regarding any manufacturing defect in the tractor. OP No.1 prayed for dismissal of the complaint by controverting the other averments of the complainant.
4.           OP No.2 filed its separate written reply in the shape of affidavit of Malkiat Singh raising preliminary objections that complaint is false and frivolous and is not maintainable. It has been vehemently denied by OP No.2 that there was any manufacturing defect in the tractor. The complaint is alleged to be filed without any cause of action. Any deficiency in service and unfair trade practice on its part was vehemently denied. The factum of purchase of tractor was not disputed and OP No.2 controverted allegation of the manufacturing defect in the tractor. It was pleaded that OPs are certified with ISO 9001 and 14001 certificate and are manufactured under highly standardized quality control system. That there is no question of any problem in said tractor at all, as alleged by the complainant. OP No.2 prayed for dismissal of the complaint by denying any manufacturing defect in the tractor in question.
5.           The complainant tendered in evidence his affidavit
   Ex.C-1 and affidavit of Sh. Roop Lal, Mechanic Ex.C-2 along with documents Ex.C-3 to C-7 and closed the evidence. As against it, the OP No.1 tendered in evidence affidavit of Sh. Malkiat Singh Ex.R-1 along with documents Ex.R-2 and R-2 and closed its evidence. OP No.1 tendered in evidence affidavit of Satnam Singh Ex.R-4 along with letter Ex.R-5 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint against OP No.2 directing OP No.2 to refund the amount paid by the complainant, as price of the tractor of Rs.4,90,000/- and further to pay amount of Rs.5000/- as compensation and Rs.1000/- as costs of litigation to him. Dissatisfied with this order of the District Forum, the OP No.2 now appellant preferred this appeal against the same.
6.           We have heard the learned counsel for the appellant and respondent No.1 in this appeal and have also examined the record of the case. Respondent no.2 was given up and its name was deleted from the array of the parties in the appeal, vide order dated 18.11.2011 of this Commission. The only point with which, we are concerned in this appeal is whether there was any manufacturing defect in the tractor or not. The complainant has pleaded and stated on oath that there was manufacturing defect in the tractor. On the other hand, the OPs vehemently denied any manufacturing defect in the tractor in question. There are respective affidavits of the parties of both sides denying the version of each other. The parties also examined some witnesses labeled as expert witnesses in this case.
7.           We have to refer to their evidence on the record in this regard. The complainant examined Roop Lal S/o Gulzar Singh before District Forum, styled as expert witness by the complainant. He was cross-examined by OPs. From his cross-examination, it has transpired that he studied upto 7th standard and has not passed any technical course and he does not possess any technical qualification of mechanic. He has not brought any documentary proof that has been running a workshop of repair of tractors at Bharatgarh. He admitted that he did not possess any certificate of mechanic of the tractors. He also admitted that complainant is his permanent customer. He further stated that defects pointed by him in his report could occur due to short-circuiting of wires on account of lapse on the part of the mechanic. The OP also examined their witnesses, styled as expert witness. They examined Harbans Singh Asst. Manager employed with them. His statement has also been referred by us in this regard. He was cross-examined by the complainant. He admitted that he was not qualified engineer. That he is doing the job with his company OP No.1. That he studied upto higher secondary only. That he has no knowledge about inspection of tractor earlier. He admitted that he filed affidavit and report as Assistant Manager in International Tractor Ltd. Hoshiarpur. He also admitted that there are employed qualified engineers with the OPs. None of them has been examined in this case.
8.           From the testimonies of the above referred witnesses styled as expert witnesses, we have come to the conclusion that none of them is a qualified expert witness. None of them has studied any mechanical engineering, nor has any such experience after completion of study. None of them could produce any certificates to prove their experience or their qualifications in engineering of tractors. We are unable to come to any conclusion on the basis of statements of above witnesses, labeled as expert witnesses by both the sides A very vital point is involved in this case for adjudication, as to whether, there was any manufacturing defect in the tractor in question. There are allegations and counter allegations coupled with the affidavits of the parties against each other. The National Commission examined this point in "Tata Motors & others    versus  Ashish Aggarwal & others reported in 2014(2) Consumer Law Today-34" and held that in case of manufacturing defect in the vehicle, this point could not have been decided successfully and effectively without expert opinion. Herein, none of the above referred witnesses possess any qualification in mechanical engineering and as such they are not qualified expert witnesses. The manufacturing defect can be established by the expert witnesses only in the tractor. The expert witnesses are that witnesses, who hold either degree or diploma in this regard and has requisite experience as well.
9.           In view of our above discussions, we are unable to come to a definite conclusion on the basis of evidence of the parties and their self-styled and self serving expert witnesses and in view of law laid down by The National Commission in Tata Motors vs. Ashish Aggarwal (Supra), we deem it appropriate to remand the case to the District Forum. The District Forum shall adjudicate this matter afresh after obtaining the report from a qualified expert witness with regard to the existence of manufacturing defect in the tractor and then decide the case afresh on the basis of available evidence on the record.
10.           As a result of our above discussion, we accept the appeal of the appellant and by setting aside the order of the District Forum dated 04.02.2011 under challenge in this appeal, we remand the case to the District Forum Ropar with a direction to obtain the fresh expert opinion of a qualified expert with regard to any manufacturing defect in tractor in question and then to decide the case afresh. The parties are directed to appear before District Forum concerned on 13.03.2015 at 10:30 A.M. Record of District Forum be sent back so as to reach there well before date fixed.

10.              The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount be remitted by the registry to the appellant by way of a crossed cheque/demand draft with interest which accrued thereon, if any, after the expiry of 45 days.

11.              Arguments in this appeal were heard on 10.02.2015 and the order was reserved. Now the order be communicated to the parties.        The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                         (J. S. KLAR)

                                                         PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                              MEMBER

 

February 12, 2015.                                                             

(MM)