DISTRICT CONSUMER DISPUTES REDRESSAAL FORUM, KALAHANDI, BHAWANIPATNA

C.C No.22 OF 2018

              Date of order    18^th  February 2019

PRESENT

Sri Aswini Kumar Sahoo M.A.,LL.B (OSPS (I) Sr. Retd.          President

Smt. Bhawani Pattnaik,M.A,LL.B,PDCLP,                               Member

Bhubaneswar Panda, S/o Late Dhaneswar Panda, aged about 50 years, R/o village Kachimdola, Po,Habaspur,Ps Junagarh, District Kalahandi, Orissa.

                                                                                                            …………Complainant

Versus

1. CNH Industrial (India) Pvt. Ltd.

(Formally Known as New Holland Fait (Indial ) Pvt. Ltd.

Chandavali Farm Road,

Near Chandvali Studio, Andheri (East)

2. Parminder singh,

S/o Not Known

AGM Service, CNH Industrial (India) Pvt. Ltd

Industrial Plot No.3,Udyog Kendra, Greater Noida, Gautam Budh Nagar,

Utter Pradesh-201306

3. Sutanu Pratihari, S/o Not Known,

Regional Sales Manager, Odisha-WB-NE,

CNH Industrial (India) Pvt. Ltd,

Unit No.605-Tower-1,The Chamber-1865,Rajdanga Main Road, RB connector

Kolkata-700107,West Bengal.

4. Narmada Agro Sales & Service,

At- Permanandapur, Kesinga Road,

Po/Ps Bhawanipatna, District Kalahandi

5. Binaya Kumar Panda,

M/s S.R. Enterprises,

Authorized Dealer CNH Industrial (India) Pvt. Ltd,

Kalahandi,Po/Ps Bhawanipatna, District Kalahandi.

                                                                                                 …..Opposite Parties.

Counsel for the parties

For the Complainant: M. Bag and Associates.

For the O P No.1 to 3 and 5 : Sri Kunal Kumar Behera

For O P No.4 : Sri Sailesh Kumarand Associates.

The grievance of the complaint in brief is that the Complainant has purchased one 4710(4WD) model New Holland Tractor from the Op No.4 on Dt.19-07-2017 on availing financial assistance from DCB, Bank. The Complainant had engaged the same in the agricultural works of other farmers like plowing, tilling, disking etc. on rent besides his own use and further he was providing his tractor to other farmers for plowing of paddy fields on rental basis at the rate of Rs.1700/- and was earning Rs. 7,000/- to 8,000/- per day. On Dt.31-01-2018 the same tractor of the Complainant was broken down due to mechanical defects, while it was engaged in the plowing work in the paddy field of one Goutam Bag of his village. On Dt.02-02-2018 the Complainant lodged complaint to the company through online system dialing relevant phone number and the complain was immediately registered and he was advised to make contact with the Opp.Party No.5 for necessary service and accordingly the Complainant had contacted Opp.Party No.5. On 03-02-2018 Opp. PartyNo.5 had send his mechanics to the spot for the repairing of the tractor and the same was inspected by them and they fish out the damage spare parts from the vehicle and took those to the workshop of Op No.5 for replacement.But till date the tractor was not repaired and the alleged tractor has been lying in the paddy field of Sri Goutam Bag. So the Complainant has been forced to file this petition before this forum to ventilate justice. It is the claim of the Complainant that the Opposite party members had not provided the required services and adopted unfair trade practices and as such liable to compensate him. Hence prayedto declare the service of the opposite party company andthe dealer as deficient in servicein the matter of not providing the mechanical services and replacement of the new spare parts of the vehicle and also prayed to pass order by directing theOps to pay all the expenses if he replace the damage spare parts and repair the tractor privately in other garage and for compensation. After receipts of the notice all the opposite parties appeared and filed their respective written version.

It is submitted by the Opp.Party No.1 to 3 that the complaint is not maintainable and the same is liable to be dismissed as the complainant is not a Consumer as defined under section 2(d) of the Consumer Protection Act, as the Complainant was using the alleged tractor for providing services to other farmers on rental basis .Further prayed for the dismissal of the case of the Complainant on the ground of non-joinder of necessary and proper party as the Complainant has not impleaded the DCB, Bank, Bhawanipatna as one of the parties. Further claimed that the Complainant was using the same tractor in contravention of the terms and conditions of the Warranty Certificate. The 1^st and 2^nd free services as well as the Scheduled periodic services there after were not done by the complainant in accordance to the prescribed schedule.

Further the Opposite parties no.1 to 3 submit that the Petitioner had contacted the Op No.5 on Dt.02-02-2018and on the same day complainant has lodged complaint in toll free No. alsoand immediately on the very next day i.e. 03-02-2018, the Op No.5 had sent the service engineer to the spot to inspect the tractor and at the door steps of the complainant . After inspection prepared a list of required parts to be replaced and as the required parts were not available with the Op no.5 i.e. the authorized As these parts are non-fast-moving items,thenOp No.5 had immediately started arranging the required parts from the nearby dealers of the Op No.1 of Odisha , but all required/complete parts to make the tractor of the Complainant in road worthy condition were not available at local places . So theOpp No.5 had immediately placed the order for required balance parts to the PDC (Parts Distribution Centre) of the Op No.1 Dt.12-02-2018 and the said parts were dispatched on Dt.17-02-2018which reached to the Op No.5 on Dt.26-02-2018 . There after the Opp.Party No.5 contacted the complainant but he refused to get the tractor repaired by saying that he will get it repaired only after the order of this Hon’ble court. Further it was claimed that , it was not of the manufacturing defect and as such the Op No1 to 3 can not be liable.Further submitted that there is no cause of action as against them and prayed for the dismissal of this case with heavy and exemplary cost in the interest of justice.

            The opposite Party No.5 filed his written statement claiming there in that the Complainant has purchased the alleged tractor from the Opp.Party No.4 . Further submits that as the Complainant was using the same tractor for commercial purpose, so the complainant is not coming under the definition of the Consumer as per the Act. and he should not be entitled to any relief. Further submits that the Complainant had contacted him (the Opp.Party No.5) on Dt.02-02-2018 and immediately on the very next day the Opp.Party No.5 had sent the service engineer to the spot. After inspection, it was came to the knowledge of the engineer that the “housing” of the tractor was broken down, which is rare one and only for the default and negligent driving of the driver , the same part gets effected. As the same is one of the rare case and costly and non-fast-moving item, so it is normally not available with every dealer all times and in case of requirement , the dealer has to place order to the company and accordingly the process takes some time.

More over after being intimated by the service engineer , the Opp.Party No.5 had immediately started arranging the required parts from the nearby dealers of the Opp.Party No.1, but all required parts for the repairing of the tractor of the Complainant were not available at local places .Further submitsthat, the Opp.Party No.5 had immediately placed order for the same part with some other required parts for the repairing of the tractor on Dt.10-02-2018 through the Territorial Manager of the Opp.Party No.1 Mr. Ranjan Purohitand the same was with in the knowledge of the Petitioner. Accordingly the relevant parts were dispatched on Dt.17-02-2018 from the manufacturing unit (Greater Noida) vide invoice Dt.17-02-2018 and was in transit. More over the Opp.Party No.5 was regularly making contact with the Petitioner and accordingly was being updated the details from step to step. Further submits that the relevant parts were reached to the Opp.Party No.5 on Dt.26-02-2018 . Also the Opposite Parties No.5 have filed relevant documents likeOne true copy of invoice vide GST-40119434 Dt.17-02-2018 and true copy of the mail Dt.10-02-2018.More over on the very same day i.e. on Dt.26-02-2018 the Opp.Party No.5 had intimated the same to the Petitioner, but the petitioner had not responded. Subsequently it was came to the knowledge of the Opp.Party No.5, that, the Petitioner with some ulterior motive had initiated this case since Dt.18-02-2018.

            The Opposite Party no.5 relied on documents  like True copy of Invoice Certificate vide No.GST-40119434 Dt.17-02-2018,One true copy of mail Dt.10-02-2018,one  parts bill vide No.8 and the Job card for in connection with the repairing of the alleged tractor.

After his appearance the Op No.4 submitted  in his written version denying all the claims of the Complainant and sought for the dismissal of the complaint petition but not file any documents  in support o his claim.

                                                   FINDINGS

            The contention of the complainant is that his tractor was broken down and he lodged complaint before the Op No.1 i.e. the Company through its toll free number and as per advice he made complainant before the Op No.5 who is the authorized dealer for sales and service of the Opp.Party No.1 on dt.02-02-2018 and it is also the admitted facts of the parties that the Opp.Party No.5 had sent his service engineer at the doorstep on the very next day i.e. on dt.03-02-2018. After inspection of the tractor, it was came to the knowledge that the housing of the alleged tractor was broken down including other parts. We feel that it is one of the rare case , where the housing of a tractor was broken down automatically, with out meeting with any accident.  However considering the pleading of the Opp.Party No. No.5 in Para 6 of his written version we hold that the alleged part of the tractor was damaged. 

We perused the documents available on record as relied by the Op No.5 i.e. one True copy of Invoice Certificate vide No.GST-40119434 dt.17.02.2018 and one true copy of mail dt.10.02.2018. Form both the documents it can be safely concluded that the Op No.5 duly placed order and he received the same on 26^th February 2018. Also we hold the alleged parts are to be non fast moving item and generally these parts may not be available with the dealers. Also the Op No.5 had made his effort to find out the alleged parts form the near by locality of Orissa , which means he is with an intention to provide better and earlier service to the Complainant. And when it was not available, the same Op No.5 placed order before the Company. So it can not be hold that the OP No.5 as well as the Op No.1 to 3 acted negligently and also there is nothing any material available on record to conclude that there is any unfair trade practice  on the part of the Ops . Rather hastily the Complainant has filed this complainant with out waiting for the arrival of the same parts.

Further the complainant had filed one petition praying there in to repair his tractor privately and after submissions of the bills, the amount is to be reimbursed from the Op No.5. Also the Op No.5 had filed his objection alleging there in that the parts are already available with him and these are costly and non fast moving items. Also claimed that if such order will be passed then it may be leading to other complicacies like dispute regarding the cost of repair. After considering the circumstance and material available on record , we had already passed interim order on dt.25.04.2018 by directing the Complainant to place the alleged vehicle before the Op No.5 with in ten days of receipts of the order on his own cost and the Op 5 is directed to repair the vehicle with in seven days of the vehicle produced before them. Further it was directed that if the vehicle was to be taken to the shop of the Op No.5 by towing, whether the cost born by the  complainant towards the towing will be reimbursed or not will be decided at the time of final hearing of the case.

We perused the both the documents as relied by the Op No.5, i.e. one  parts bill vide No.8 and the Job card in connection with the repairing of the alleged tractor in compliance of the interim order Dt.25-04-2018 as passed by this forum. It is very clear that the alleged tractor was completely repaired and now it is in running and road worthy condition to the best satisfaction of the Complainant. More over after it repairing , the complaint has neither made any complain before the Opposite party company nor made any grievance before us, so we hold the Complainant has been satisfied with the repairing of his tractor.

Regarding the towing charges of the tractor for producing the same before the Opp.Party No.5 , no bills or claim has been made by the Complainant . Rather the Complainant had filed one affidavit swearing there in that the complainant has brought the alleged tractor to the workshop in rerunning condition. In the absence of any claim for reimbursement of towing charges and perusing the contents of the Affidavit as filed by the Op No.5 we hold that the alleged tractor was produce before the Opp.Party No.5 in well rerunning condition and hence the Complainant is not entitled to any relief on the head of towing charges.

  Further we hold that the complainant had purchased the alleged tractor from the Op No.4, while he was the authorized dealer and now the present Op No.5 is the authorized dealer. As this is a dispute concerning the repairing of the tractor , so we do not find any cause of action against the Op No.4 and accordingly he is not a necessary or proper party. Hence the case is dismissed against the Op No.4.

 As the vital claim of the complainant i.e. the repairing of the tractor has already been done, so we do not find anything to proceed with the case . Also as discussed earlier the Op No.5 as well as the Op No.1 to 3 have not acted negligently and nothing any unfair trade practice on their part .So the Complaint is not entitled to any relief as sought for and hence order.

                                         ORDER

                        In view of the above discussion and findings, we confirm the interim order already passed. The Opposite Party No.5 is directed to repair the vehicle by using the parts which had already been obtained by Opp.Party No.5 soon after receiving the complaints from the complainant within fifteen days of production of the vehicle by the complainant and bring the vehicle in running condition if the earlier interim order has not yet been complied. No cost and compensation is awarded in the above circumstances.    

                   Pronounced in open forum today on this the 18^th day of Feburary,2019.

                Member                                                      President