Date of Filling: 22.03.2013
Date of Disposal: 05.06.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
THIRUVALLUR-1
PRESENT: THIRU.S.PANDIAN, B.Sc., L.L.M. ….PRESIDENT
THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP., …MEMBER
CONSUMER COMPLAINT No.10/2013
Tusday, THE 05 DAY OF JUNE 2018
A.Ganesan,
S/o,Arunachala Mudhaliar,
No.2/32, Melandai Street,
No.70, Chinnambedu Village,
Ponneri Taluk, Thiruvallur Distrtct.
Pin.601 206. ……Complainant.
//Vs//
1.C.E.Rajinis,
The Proprietor, Rajinis Tractors
No.17&18, Subbulakshmi Complex,
Thachoor Cross Road,
GNT Road, Panjetty(Post)
Ponneri Taluk- 601 204.
2.The Managing Director,
Eicher Tractors,
Plat No.1SectorD, Industrial Area,
Manideep, Raisen District,
Madhya Pradesh -464 046 ………..Opposite Parties.
This complaint has come before us finally on 28.05.2018 in the presence of the Thiru.A.R.Poovannan,Advocate on the side of the complainant and Mr.L.Thanigaival Counsal for the 2nd Opposite party and the 1st Opposite party was remained Ex-Parte for non appearance and having perused the documents and evidences on the side of the complainant and the 2nd Opposite party, this Forum delivered the following.
ORDER
PRONOUNCED BY THIRU.S.PANDIAN, PRESIDENT
1.This complaint is filed by the complainant U/S of Consumer Protection Act,1986 against the 1st&2nd Opposite parties seeking refund of the cost price of the tractor and Rs.4,50,000/- towards damage and to pay Rs.5,00,000/- towards compensation for causing mental agony to the complainant with cost of litigation.
The brief averments of the complaint if briefly as follows:-
2. The complainant is an agriculturalist by profession and he owns more than 70 acres lands in his village. The first Opposite party being the authorized dealer of the second Opposite party approached the complainant for the purchase of the Newly introduced Eicher Tractor Model No.5660 and he assured that the new model tractor is 3300 CC and thus it will be more powerful and it will plough an acre of land within half an hour. Further the first opposite party also offers an introductory discount of Rs.50,000/- in the total price. Believing the words of the first opposite party that the new model tractor will be more helpful in his agricultural operations, the complainant decided to purchase the tractor.
3. The complainant, on 09.05.2011 has purchased the Tractor by availing loan from HDFC Bank. When the vehicle was used in the field the entire field got extensively damage and the tractor got in to the field to an extent of more than two feet under the earth and thereby he has to spend more be leveling the field. That the tractor is not worthy to plough the field and the complainant informed the same to the first opposite party and first opposite party suggested to fix a gauge wheel in addition to the back wheel and accordingly the complainant spent Rs.1,09,000/- for making the gauge wheel. The front wheel bearing got damaged and the complainant was forced to change the same. Further the spares of that particular make is not available in the surrounding area and it has to be brought from Chennai, that too at the cost of the complainant. Thus the agricultural operation use to get delayed and the complainant was put to great mental agony and hardship.
4. In the meantime, the Bank authorities are pressurizing the complainant for the repayment of the loan amount. The complainant has to rented out tractors from the villagers to complete his work and the complainant has to spent a sum of Rs.1,50,000/-per crop. That the complainant has raised three crops after the purchase of the tractor and thus he has parted a sum of Rs.4,50,000/- only towards of the tractor rent.
5. The complainant submits that all the difficulties are well known to the first opposite party and the complainant is repeatedly approaching first opposite party to take back the tractor and replace a new one with the exact model of vehicle which will be useful for the agricultural operations. The complainant is patiently waiting and there was no response from their end. The complainant submit that it is purely a manufacturing defect and is not helpful in the agricultural operation more particularly for pluoghing. The complainant has suffered great financial loss and was put to great hardship, strain and mental agony. The complainant therefore on 05.11.2012 issued legal notice to the opposite parties to take back the vehicle and to refund the cost of the vehicle paid by the complainant for damage and compensation and there was no action from their end. Hence this complaint.
6.The contention of written version of the 2nd opposite party is briefly as follows:-
The 2nd opposite party denies all the averments of complaint filed by the complainant. The complaint is not maintainable because no manufacturing defect in the said product. Op2 has been falsely impleaded as party. The complainant is not a direct consumer of the answering opposite party2. It is pertinent to point out here that the relationship between Non-Applicant No.2 and Non-Applicant’s No.1 these on principal to principal basis and there is no privacy of contract between the Manufacturer and the Costumer. The answering party No.2 is selling the tractor manufactured through their authorized dealers. The customer does not having sufficient land for cultivation to use a high horse power tractor for farming only. In the absence of any document particulars on record connecting to Op1 is a manufacturer of Tractors only. Therefore all the contents o are denied specifically.
7. That the contents of para No.6 have come to the knowledge of the Op2 only when he received the legal notice from the complainant. After receiving the same, the Op2 had approached the complainant and advised to use the tractor as per the instructions mentioned in the operators manual and bring his tractor to the dealership but the complainant not do so. If the Customer is having any complaint about the functioning of his tractor, it is out of warranty as per the policy of the company but as per good will gesture is the complainant can bring his tractor at the dealership workshop of the Op1 for the service or can approach to the Op2, will provide him services and benefits as per the warranty policy of the company as a special case only.
8. That the complainant had not approached the Hon’ble Forum with the true facts and clean hands. Hence this complaint is liable to be dismissed.
9. Inspite of notice served and sufficient opportunities given to the op1, he has failed to appear and rebut the contention or the complainant and so he was set Exparte.
10. In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and ExA1 to ExA8 were marked. While so, on the side of the 2nd opposite party, the proof affidavit submitted for his evidence and ExB1&ExB2 were marked. Ex.C1 &C2 also marked.
11.At this juncture, the point for consideration before this Forum is:-
1. Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?
2. Whether the complainant is entitled for reliefs as prayed for in the complaint.
12. Written arguments filed by the complainant and 2nd Opposite party and also oral arguments adduced on both sides.
13.Point No:1:-
As per the averments of complaint, it is alleged that the complainant having a belief over the assurance given by the opposite party1 who is the authorized dealers of Op2, purchased the newly introduced EICHER TRACTOR Modal No.5660 which is having 3,300 CC by availing loan from HDFC Bank for agricultural purpose of is own land on 09.05.2011. But as per assurance given by Op1, the said EICHER TRACTOR is not worthy to plough the field, and on the suggestion given by the Op1, though the complainant had spent Rs.1,09,000/-for fixing a new gauge wheel and even then the said Tractor could not plough the field and thereby the agricultural operation got delayed and the complainant put to great mental agony and hardship. In spite of repeated request, to the opposite party has not come forward to rectify the defects and therefore this complaint has been filed.
14.Though the Op1 remained exparte, the Op2 had appeared and contended that there is no mechanical defects alleged by the complainant and in fact the complainant is not a direct costumer under the consumer protection Act 1986 and there is no privity of contract between Op2 and the complainant and furthermore the complainant does not having sufficient land for cultivation to use a high power tractor for forming and also failed to follow the instruction about the function of the tractor as per the manual and warranty period and thereby this complaint is not maintainable.
15. At this juncture, the foremost duty cast upon to this Forum, is to decide whether the complainant has proved the averments made in the complaint against the opposite parties, by means of reliable and consistence evidences. First of all, on going through the proof affidavit filed by the complainant, it is seen that on 09.05.2011, the complainant purchased the tractor Modal No.5660 which is having engine capacity 3300CC, from the Op1 which was manufactured by the Op2. The tractor installation certificate and warranty registration is marked as Ex.A1. The certificate of registration bearing the vehicle No.TN-18-J-779 is marked as Ex.A2. The insurance certificate of the above said vehicle is marked as Ex.A3. The complainant purchased the tractor by availing loan from HDFC Bank. It is further the deposed that, as per the assurance given by the Op1, the said tractor is not worthy to plough the field and immediately it is informed to Op1 and in turn the Op1 suggested to fix a new gauge wheel in addition to the back wheel and accordingly the complainant had spent Rs.1,09,000/- for making the gauge wheel but It ended in vain. The delivery challan is marked as Ex.A4 and the installation service report is marked as Ex.A5. The advertisement notice is marked as Ex.A8 and on further perusal, it is noted that in spite of making gauge wheel, the said tractor is not useful to plough for field and agricultural purpose. On repeated request, the opposite parties have not come forward to take back the vehicle and fulfilled the demand of the complainant. Therefore the complainant has issued legal notice to the Opposite parties and the same was received by op2 whereas the op1 had returned the said notice, which is marked as Ex.A7.
16. While being so, on perusal of the evidence of the Op2 it is stated that there is no such mechanical defect to the said tractor as alleged by the complainant. Further, it is described that the complainant is not a direct consumer to op2 and there is no privity of contract between Op2 and the complainant and infact the complainant has not used the said tractor as per instruction given in the warranty policy of the company and the manual supplied by the opposite parties and also the complainant has not brought about the defects in the tractor till the receipt of the legal notice from the complainant. Furthermore, the complainant had not approached the Forum with clean hand. The warranty copy is marked as Ex.B1 and the letter of confirmed Balance has been marked as B2.
17. At this juncture, on careful perusal of the rival submissions putforth on either side, it is crystal clear that the complainant had purchased EICHER TRACTOR Modal No.5660 having 3300CC engine capacity from the Opposite party1 who is the authorized dealer of the Opposite party2, being the manufacturer of said tractor. On the assurance given by op1 and through Ex.A8 the complainant believed that the said tractor is more powerful and helpful in his agricultural operation above said facts have not been disputed either by Op1&2. It is further learnt that after purchase of tractor, when the complainant used the said tractor to plough the field the tractor is not worthy to the plough for field and for other agricultural purposes and immediately, the complainant informed the same to the Op1. In turn the Op1 had suggested to fix a new gauge wheel in addition to the back wheel and accordingly the complainant spent Rs.1,09,000/-(Ex.A4) for making a new gauge wheel. At that time, the front wheel bearing got damaged and the complainant was forced to change the same and thereby complainant incurred additional cost. Even thereafter, the tractor could not be used for proper ploughing the field and other agricultural purposes and thereby the agricultural operation use to got delayed and complainant was put to great mental agony and hardship by renting out from the villagers by spending sum of Rs.1,50,000/-per crop and to that extent of Rs.4,50,000/-for raising 3crops after the purchase of the tractor.
18. It is further seen from the evidence of the complainant, though repeated request and demands approaching the Op1&2 to take back the tractor and replace the new one, but there was no response from their end which clearly reveals the fact that there is mechanical defect in the said tractor. The said mechanical defect has been clearly proved through the report of the advocate commissioner appointed by this Forum on the petition filed by the complainant, and same is marked as Ex.C1&C2. Whereas, the opposite party1 was remained exparte who is the competent perion, eventhough notice served to him, and sufficient opportunities given to him he has not choson to appear and to rebut the allegation of the complainant. From which, it can be easily presumed that the allegation made the complaint are all true and acceptable one.
19. Such being so, on careful perusal of the evidence of the Op2 the main contention of Op2 is that there is no manufacturing defects in the said tractor as alleged by the complainant. Further, it is stated that the complainant is failed to prove that there is mechanical defects in the said tractor by means of expert evidence and also raised some objections to the advocate commissioner report Ex.C1&C2 and in their objection, it is stated, that “whatever work any other tractor of the similar capacity can do op2 also would prove that the tractor could also do the same work in the same soil with same implement at the point of time”. But in order to prove the same till date though sufficient time was given to the op2, he has not taken even a single steps for causing production of the similar tractor in order to prove the efficiency of the alleged tractor as contended by the opposite party. So, it can be easily presumed that the op2 has failed to do so and thereby the above said abjection raised by op2 against report Ex.C1&C2 holds not good. Similarly, on the side of the op2, nothing evidence produced to show that the complainant has not having sufficient land to plough with high power engine capacity tractor and also there is no concrete proof on the side of the op2 to show that the complainant had purchased the said tractor for commercial purpose. Since the burden of proof shifted to the op2.
20. At the outset, this Forum has to consider the main contention raised on the side of the OP2 is that the complainant failed to follow the mandatory provision of section 13(1)(c) and 13 (1)(d) of consumer protection act. In this aspect, it is pertinent to note that the vehicle concerned is a new one which is purchased by the complainant from the Op1 who is authorized dealers of Op2 being the manufacturer of the said tractor. It is further stated that the tractor is a new one and immediately to the purchase when the complainant used the said tractor for ploughing the field, if could not be done by the said tractor as assurance given by the Op1 and immediately the same was informed to Op1.
21. Further, it is crystal clear from the evidence of complainant that the suggestion given by Op1 who is the dealer and service provider, the complainant had spent Rs.1,09,000/- for making a new gauge wheel in addition to back wheel so as to enable to plough the field to the well extent by using the tractor. Eventhen, it could not be fulfilled the said purpose. It also not disputed specifically by op2, at any stage. Furthermore, the Op1 is the competent person to dispute the said fact by knowing all things who was conveniently remained expartie. Furtherfore, inspite of repeated request and demands, the Op1 has not come forward to rectify the defects, even after the complainant had fulfilled the suggestion given by Op1 by spending huge amount of Rs.1,09,000/- by himself or through Op2. Therefore, it goes without saying that as rightly alleged by the complainant that there is a manufacturing defects in the said tractor since the said tractor is being a new one which could not activated as assured by the Op1 as well as through advertisement. As already pointed out above, the advocate commissioner has also clearly explained about the unworthy condition and there is some defects in the said vehicle through Ex.C1&C2. Hence, it is presumed that there is same manufacturing defects in the vehicle’s operation and the same cannot be used for agricultural purposes. In such circumstances, the plea taken by the Op2, that the complainant has failed to observe the mandatory provision 13(1)(c) & 13(1)(d) of the C.P.Act 1986 is devoid of merits. At this point of time this Forum wants to rely upon by the following decision which is squarely applicable to the facts of the case on hand.
2016(1)CPR 38(NC) NATIONAL COMMISSION,NEW DELHI
Manager,
Regional Office,
John Dreere India Private limited,
//Verses//
Laxmi Narayan Patal & another
It is held that where the Op1 and Op2 Could not rectify the manufacturing defects despite repeated complaint and taking the vehicle to workshop, the consumer fora has no other option but the hold that deficiency in service stood proved. The complainant after being fed up with the defects, does not gain anything for filing a case before the consumer fora. The reasoning given by the fora a below cannot be faulted. The fora a below have nowhere missed the wood for the trees, we add our voice to theirs and dismiss the revision petition.
22. From the foregoing among other facts and circumstances this Forum can easily conclude that there is a deficiency of service on the part of the Op1&2 and the same has been proved by the complainant through consistent and reliable evidences. So, all the contention raised on the side of the Op2 holds not good. Accordingly, the point No.1 is answered
Point:2:-
23. As per the view taken in Point No.1, the complainant is entitled for refund of the price of the vehicle with interest and also entitled for reasonable compensation for having suffered the mental agony and financial loss due to deficiency of service committed by Op1&2 with cost. Thus the point No.2 is answered accordingly.
In the result, this complaint is allowed in part. Accordingly, the Op1&Op2 are jointly and severally directed to refund the cost of the tractor concerned in this complaint with interest at 9% per annum from the date of the complaint till this date of this order, on returning the said tractor by the complainant within 30days from the date of receipt of the copy of this order and in addition to that the Op1&Op2 are directed to pay a sum of Rs.1,09,000/-(One laksh nine thousand only) as per Exhibit A4 towards the amount spent by the complainant for making gauge the wheel and also to pay compensation to the tune of Rs.50,000/-(Fifty Thousand only) in total, for causing mental agony and financial loss due to the deficiency of service and to pay sum of Rs.5,000/-(Rupees Five thousand only) towards the cost of litigation. Regarding other reliefs, it is dismissed.
The amount shall be pay able within one month from the date of receipt of the copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.
This order was dictated by the President to the Stent-typist, typed by his, corrected, signed and pronounced by us in open Forum, today on this 05th day of June 2018.
Sd/- Sd/-
MEMBER PRESIDENT
List of Documents filed by the complainant:-
Ex.A1 | 09.05.2011 | Tractor installation Certificate | Original copy |
Ex.A2 | 06.01.2012 | Registration certificate | Xerox copy |
Ex.A3 | 23.06.2011 | Insurance Certificate | Original copy |
Ex.A4 | 06.05.2011 | Delivery Challan for Rotatary | Original copy |
Ex.A5 | 05.05.2011 | Installation service Report | Original copy |
Ex.A6 | 05.11.2012 | Legal notice to the opposite parties | Original copy |
Ex.A7 | 10.11.2012 | Returned cover from the op2 | Original copy |
Ex.A8 | | Advertisement Notice | Original copy |
List of documents filed by the Op2
Ex.B1 | | Warranty copy | Xerox copy |
Ex.B2 | | Letter of confirmation Balance | Xerox copy |
ExC1&C2 | | Advocate commissioner report | Xerox copy |
Sd/- Sd/-
MEMBER PRESIDENT
