BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

C.C NO-90/2010

Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy,Member (W).

1. Mst. Gulabati Choudhury,aged about 40 years,
2. Mst. Priyabati Choudhury,aged about 54 years,

Both are wife of Late Dayanidhi Choudhury,

Vrs.

1. Chairman,ESCORTS Tractor Ltd,(Manufacturer),

15/5, Mathura Road,Faridabad-121003,Haryana.

2. M/S Shakti Agencies(Dealer),

N.H-6, Ainthapali, Near TATA Nagar, Petrol Pump,

Dist- Sambalpur-768004(Orissa).

3. Branch Manager,

State Bank Of India,(Financier),

Kuchinda Branch, At/P.O/P.S-Kuchinda,

Dist- Sambalpur-768004(Orissa).……..O.P

1. For the Complainant:-  Sri P.P.Panigrahi,Advocate.
2. For the O.P-1&2 :-         Sri. S.N,Dhal. Advocate & Associates.
3. For the O.P-3      :-         Sri. P.K.Kar, Advocate & Associates.

DATE OF HEARING : 24.02.2021, DATE OF ORDER : 22.03.2021

SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that, the Complainant No-1 opted to purchase a Mahindra Tractor of model FT-35 Champion with the financial assistance of the O.P-3(the Bank). But the Complainant alleged that the O.P-3 in connivance with the O.P-2(Dealer) sanctioned the loan for the Tractor and Trailer manufactured by the O.P-1(Escort Manufacturer). The terms and conditions of the loan were not properly made understood to the Complainant by the O.P-3 and signatures were taken on the blank spaces on the printed forms without any guidance of any male member of her house. The Complainant has paid Rs.30,000/- as security money against which the O.P-3 did not issue any receipt. The O.P-2 delivered a Tractor bearing registration No- OR-15-M-1307 and Trailer No- OR-15-M-1308 to the Complainant No-1 after registration and Insurance in the 1^st week of April 2008 but the sale letter, operating manual, brochure were not supplied till filling of this case. After fourth day of use the engine of the said Tractor was seized and the Complainat-1 informed the matter to the O.P-2 and repair is done accordingly.  But after repair again the engine developed the same defect and broke into two pieces and the same was brought to the workshop of the O.P-2  at Sambalpur by towing and repaired. After completion of repair the O.P-1 took signature of the Complainant-1  on the back of a Cheque, later on the Complainat-1 came to know that the O.P-2 has fraudulently taken her signature on the claim papers and misappropriate the insurance claim money. The Complainan-1 claims that the tractor has inherent manufacturing defects which were from the beginning and persisted after several repairs for which it broke into two pieces within some days of use.  The Complainant also claims that the O.P-2 has delivered her a second hand and used tractor taking advantage of illiteracy, backwardness and helpless gender and the O.P-2 is habitual in these activities. It is also alleged that the O.P-2 has made a false insurance claim to hide his fault and of the O.P-1 and their responsibilities to repair the tractor within the warranty period. Also the O.P-1 has charged repairing cost from the Complainant-1 during the warranty period and realising the same from the purchaser through insurance claim.

According to the O.P-1 the Tractors has been delivered to the customer on dtd.24.-12.2007 only after Pre Delivery Inspection and in working condition accompanied with original bills and money receipts which were deposited with the O.P-3 and rest of documents like warranty manual, duplicate bills were given to the customer at the time of delivery. The Complainant has not submitted any Independent expert report to substantiate the allegations without which the case may be dismissed. The Complainant has to proof the defect in the Tractor. The defects faced by the Complainant is not inherent but due to improper handling and maintenance by the purchaser in violation of the terms of warranty manual and guidelines. Again there is no privity of contact with the Complainant-1 as he has not sold the tractor to the Complainant directly. He has the agreement with the O.P-2 which is Principal to Principal basis. Hence the O.P-1 shall not be held responsible for the act done by the O.P-2. The Complainant came to the O.P-2 for service in the first week of delivery of Tractor and was provided with satisfactory services and job card was signed by the complainant accordingly.  The 2^nd and 3^rd servicing was done on dtd.28.03.2008 and 02.04.2008 respectively.  On the third servicing the Tractor was ran for 390 kms  which shows that it was in good running conditions and denied that the O.P-2 has handed over a second hand Tractor to the Complainant-1. Further the O.P-1has pointed out the contradiction as per the Complaint petition in para-7, it is contend that after death of her husband, the complainant used to look after the financial matters of her family but again says that the complainant is an illiterate, uneducated lady who has put signature in various papers on the direction of the O.P-2 & 3. 

According to the O.P-2, as one of the O.Ps is residing outside the Jurisdiction of the Commission, the petition is not maintainable. The Complainant is using the vehicle for commercial purpose and it is not meant for her own use.  The son of the Tractor owner, Tapan Choudhury complained that the Tractor Block broken during pulling it by another vehicle when it was stuck in river water. A stone inside the river water struck with the Tractor engine and it sustained damage and the same was repaired by the O.P-2. He denied the allegation of shifting the tractor to the workshop of the O.P-2 through his mechanic in the occasion of defects observed by the Complainant-1. The claim was lodged by the owner with the insurance company and the claim was settled. The O.P-2 has sold the Complainant a brand new Tractor and during warranty period, the O.P-2 has provided services and replaced necessary parts free of cost as he gets the cost reimbursed by the O.P-1. Hence the O.P-2 has not committed any deficiency in services as alleged by the Complainant.

According to the O.P-3 the Complainant applied to purchase a tractor manufactured by Escorts Company ltd. with a quotation issued by the said company.  The Complainant -1 and her sister who is the Complainant No-2 in this case came to the O.P-3 and made enquiry about the finance of the Tractor. The Contents of the loan documents were read over and explained to them along with the Guarantor Rajani Kanta Patel. After filling up the loan documents the Complainant-1 & 2 have put their signatures and LTI respectively on the appropriate places. The Complainant-1 has not deposited any amount as security with the O.P-3.

Points for consideration:-

1.         Whether the Complainant comes under the purview of Consumer?

2.         Whether there is deficiency in service on the part of opposite parties?

3.         Whether the Tractor had inherent manufacturing defects prior to delivery?

4.         Whether the O.P-2 has fraudulently taken signature on the cheque?

5.         Whether the Complainant is entitled to get relief as prayed for?

From the above discussion we inferred that, the Complainant comes under the purview of Consumer as she has purchased a Tractor with Trailer from tevO.P-3 through Finance.

Secondly, the Complaint petition does not discloses the date of delivery of the Tractor and Trailer to the Complainant-1. Also the Complaint petition does not contains the dates on which she brought the Tractor to the O.P-2 for repairing. Also there is a contradiction that as per the Complainant the Tractor was delivered to the Complainant in the 1^st week of April-2007 but according to the O.P-1 the same was delivered on dtd.24.12.2007  and the Complainat-1 has brought the Tractor for servicing in the 1^st week of January and job card was signed accordingly. Again from the retail Invoice and delivery challan issued by the O.P-2 it is observed that the same were issued on dt. 05.12.2008 vide No-49 is surprising. Further in the certified copy of Registration certificate the date of purchase and date of registration of the Tractor and the Trailer are  mentioned as dtd. 03.04.2008  and dtd.08.04.2008 respectively.  So it cannot be established the actual date of delivery of the Tractor and Trailer to the Complainant. Thirdly, there is no expert opinion submitted towards the delivery of a second hand tractor having pre-existing inherent manufacturing defects. Fourthly, no documents available to support the claim that the O.P-2 has lodged a damage claim with the insurance company and after receiving the same taken the signature of the Complainant in fraudulent manner. Further this Commission has no jurisdiction to try the cases where fraud, misappropriation, etc. are involved which are the triable by “The Civil Courts”. The Advocate for the Complainants has filed a petition u/s-13(4) of the C.P act-1986 with a prayer to this Commission for a direct to the O.P-1& 2 to produce certain documents which are relevant to this case and may helpful to the Court in decision making. Direction was given to the O.P-1 & 2 but they were failed to comply the order of the Court/Forum. Further on perusal of the case record it is found that the Advocate for the O.P-3 has filed petition on dtd.04.03.2015 informing that there is a Civil Suit vide no-06/2012 is pending in the Court of Civil Judge (Senior Division) Kuchinda which is subjudice in the said Court, hence the petition is not maintainable. But on the day of hearing he could not be able to ascertain about the present position of the Civil Suit.  In addition to the above the O.P-3 Bank has not submitted any documents relating to the finance of the Tractor and Trailer in the name of the Complaint from it could have ascertained that whether the Complainant has paid Rs.30,000/- as security at the time of finance.

On consideration of the above facts we reached to the conclusion that the O.Ps have succeeded in placing evidence in support of their claim. The allegations framed on the O.Ps are partially proved. No information is available to this Commission regarding the present status of the Civil Suit which is subjudice in the C.J.S.D, Kuchinda . However as the Tractor and the Trailer were in warranty period and the warranty condition relied upon by the O.P1 & 2  did not warrant interpretation that only the defective part was to be replaced and not the Vehicle itself. It was held that the booklet containing warranty clearly indicates promise of service and replacement with certain conditions. The complainant could not prove by means of automobile expert engineer that the tractor suffered inherent manufacturing defects of the tractor. We find that certain inadequacies existed in tractor, which cannot be said to be manufacturing defect therein. Consequently, OP-1 & 2 are   bound to replace the defective parts of the tractor being within warranty, as held by Apex Court in “” and another, 2006(2)CLT-150, when the warranty conditions clearly referred to the replacement of defective parts, hence only defective parts of the vehicle should be ordered to be replaced with new ones and not the entire vehicle. The allegations against the O.P-3 are not proved for which he is discharged from the liabilities. Hence we order as under:-

ORDER

The Complaint petition is partially allowed. It is ordered that the  Complainant shall produce the tractor in the service station of O.P-1 & 2 within 15 days period from the date of receipt of certified copy of this order whereupon OP-1 & 2  shall replace the defective parts of the defective  Tractor and make the Tractor roadworthy to the entire satisfaction of the Complainant within a period of 15 days there from. We further order the O.P-1 & 2 to pay Rs. 30000/-(Thirty Thousand) to the complainant within 30 days of receiving this order failing which the OP shall pay interest @ 9% per annum on this amount from the date of filing the complaint, i.e., 27.08.2010 till its realisation."

Order pronounced in the open Court today i.e, on 22^nd day of March 2021 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

I agree,

-sd/-(22.03.2021)                                                                                                       -sd/-(22.03.2021)

        Smt. S.Tripathy                                                                                                         Sri. D.K. Mahapatra

        MEMBER.(W)                                                                             PRESIDENT

                                                                                   Dictated and Corrected

                                                                             by me.

                                                                        -sd/-(22.03.2021)

                                                                                                Sri. D.K. Mahapatra

                                                                         PRESIDENT