BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 238 of 2017
Date of Institution : 26.09.2017
Date of Decision : 23.05.2019
Rajbala (aged about 40 years) wife of Sh.Surender Kumar son of Sh.Mohan Lal, house No.395 village Jhorarnali, Tehsil & District Sirsa.
……Complainant.
Versus
1.D.D. Motors, authorized dealer of Mahindra Tractors, Hisar Road, Sirsa through its Proprietor/partner/authorized signatory.
2.Mahindra & Mahindra, Farm Division, Akurli Road, Kandivali, East Mumbai 400101 through its General Manger/Incharge/Authorized signatory.
3.Tata Capital Finance Pvt. Ltd. First Floor, SCO 32, Sector 14, Hisar 125001, through its authorized signatory/manager.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. ISSAM SINGH SAGWAL………… MEMBER
MRS. SUKHDEEP KAUR…………………MEMBER
Present: Sh.Ravinder Monga, Advocate for the complainant.
Ops No.1 & 3 exparte.
Sh.Saurabh Nagpal, Advocate for opposite party No.2.
ORDER
The case of the complainant, in brief, is that she and her family members purchased a tractor Arjun-555 Power Plus for a sum of Rs.7 lacs including registration and other charges from OP No.1 and Rs.4 lac was financed by Op No.3 under the guidance, instance and instructions of Op No.1, with installment of Rs.66,550/-. The Op No.3 had obtained so many signatures on proformas besides obtaining blank signed cheque book as a security. The complainant had paid two installments on 09.12.2016 and 09.06.2017. The tractor in question worked properly upto January 2017 and when the husband of the complainant felt some defects in the same, he visited Op No.1 and lodged complaint but the engineer of the company told that regular use of the tractor will remove the complaints automatically. In March, 2017, the tractor started with heavy vibration with heavy sound in the back side of engine with heavy smoke and there was leakage of the back seals also. The husband of the complainant visited the workshop of the Op No.1 and also contacted Op No.2 and left the tractor there as the engineer of the company was to visit Sirsa soon. Thereafter, the husband of the complainant enquired the status of the tractor but Op No.1 showed its inability and advised the complainant to wait for another 6-7 days for removing the defects in the vehicle. The tractor remained in the workshop of Op No.1 for more than one month, ultimately the same was lifted from the workshop by the husband of the complainant, who got checked the same from other engineers and came to know that Mahindra Arjun-555 Power Plus mode has been flopped and the company is going to withdraw the same from other owners. The engineers have also disclosed that the problems in the tractor cannot be removed. The complainant and her husband requested the Ops either to settle the dispute and to replace the tractor with new one or to refund the whole amount of the tractor but to no avail. The act and conduct of the Ops clearly amounts to deficiency in service and unfair trade practice on their part. Hence, this complaint.
2. On notice, Op No.1 did not appear before this Forum despite service and as such he was proceeded against exparte vide order dated 16.10.2017 whereas, notice sent to the Op No.3, through registered post did not receive back after lapsing of period of 30 days and therefore, as per presumption that same has been delivered, op no.3 was also proceeded exparte vide order dated 03.05.2019. Op No.2 in its reply has submitted that the complainant has no cause of action to file the present complaint because no defect has been pointed out in the compliant. The sale and service of the vehicle is entirely the prerogative of the dealer and the relationship of answering OP with the dealer was on principal to principal basis. The officials of the answering OP have no direct contact with the consumers. The tractor in question is at par with other new tractors and is fitted with the modern technology and the model has no defect. The complainant had contacted the dealer on 18.01.2017 for the first time with complaint of battery and the same was not a manufacturing defect. The complainant was provided with new battery under warranty and no money was charged from him. The complainant has approached the dealer on 17.04.2017 for second free service and none of the complaints mentioned in the compliant have been reported. The complainant has never visited the workshop after August, 2017 for the service of the tractor. The complainant herself has not brought the tractor to the workshop for 3rd free service and filed the present complaint on vague and baseless allegations. There is no deficiency in service and unfair trade practice on the part of OP No.2. Other contentions have been contoverted and prayer for dismissal of the complaint has been made.
3. Thereafter, the parties have led their respective evidence.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. In order to prove his case, complainant has furnished her affidavit as Ex.CW1/A in which she has reiterated all the averments made in the complaint. The complainant has also furnished the affidavit of her husband namely Surender Kumar as Ex.CW2/A who has deposed on the lines of the averments made by the complainant in her complaint. The complainant has tendered the affidavit of Mechanic Shri Chand, Proprietor of M/s Shri Ram Tractor Workshop as Ex.CW3/A who has deposed that he has inspected the vehicle and found certain defects in tractor Arjun-555 Power Plus and submitted his report. In support, she has also placed on file copy of delivery challan as Ex.C1, copy of affidavit of complainant as Ex.C2, copy of annexure A as Ex.C3, copy of RC as Ex.C4, copy of Schedule Certificate of motor as Ex.C5, warranty acknowledgment form as Ex.C6, copy of operators’s manual as Ex.C7, personal detail of complainant as Ex.C8, X-ray Cervical Spine Ap and Lateral view as Ex.C9, CT Scan report as Ex.C10 and Ex.C12, X-ray report of left shoulder as Ex.C11, mechanic report as Ex.C13, information report as Ex.C14, copy of passbook as Ex.C15 and Ex.C16, statement of account as Ex.C17, copy of Adhar card as Ex.C18 and Ex.C19, copy of ration card as Ex.C20.
6. On the other hand, op no.2 has furnished affidavit of Sh. Arunava Roy General Manager as Ex.RW1/A in which he deposed and reiterated all the averments as made in the written statement. He has deposed that the complainant has miserably failed to prove any defect in the vehicle nor is there any deficiency in service on the part of the answering op. As a matter of fact, op no.2 is manufacturer of the vehicle. The sale and service of the vehicle is entirely the prerogative of the dealer. The op no.2 plays no role in the sale service of the vehicle. The complainant never visited any authorized workshop for service of the Tractor in August, 2017. As per enquiry made from the dealership, the op has not even approached the dealership in the month of March. The op no.2 has tendered the job card as Ex.R1.
7. Admittedly, the complainant has purchased the tractor Arjun-555 Power Plus for a sum of Rs.7 lacs including registration and other charges from OP No.1 and Rs.4 lac was financed by Op No.3 under the guidance, instance and instructions of Op No.1, with installment of Rs.66,550/-. As per allegations in complaint, the tractor in question had worked properly upto January 2017 and when the husband of the complainant felt some defects in the same, he visited Op No.1 and lodged complaint but the engineer of the company told that regular use of the tractor will remove the complaints automatically. In March, 2017, the tractor started with heavy vibration with heavy sound in the back side of engine with heavy smoke and there was leakage of the back seals also. The husband of the complainant visited the workshop of the Op No.1 and also contacted Op No.2 and left the tractor there as the engineer of the company was to visit Sirsa soon but however, they did not give any heed to her complaint. The complainant had sought the replacement of the tractor with the new one and also sought the direction to set and surrendered the entire account of the complainant with op no.3 and also sought some amount of compensation and cost of proceeding.
8. The perusal of the evidence of the complainant reveals that the complainant has relied upon the report of Shri Chand Mechanic which is Ex.C13 on the record qua the tractor suffering from manufacturing defect. It has been mentioned in the report that there is heavy vibration with the starting of the tractor. There is heavy noise in the back of the tractor, there is noise in the PTO gear, noise in the third and back gears, there is no pulling power and there is problem in its starting. The perusal of this report reveals that the mechanic who has inspected the tractor issued this report did not mention the registration number of the tractor which he inspected. He further did not mention date, month and the year of inspection and issuance of inspection report. The perusal of the affidavit as Ex.CW3/A of Shri Chand mechanic also reveals that he has not deposed about the registration number of the tractor, date, month and year of inspection and issuance of rep;ort by which he has alleged the manufacturing defect in the tractor. So, this report of the mechanic as Ex.C13 does not inspire any confidence and the same cannot be relied upon. The complainant has not led any other cogent and convincing evidence from which it can be presumed that there is any manufacturing defect in the tractor of complainant. It is settled principle of law that until and unless the complainant does not prove that vehicle suffers from any manufacturing defect, no order for the replacement of the vehicle can be passed against the manufacturer.
9. Though it is the legal obligation of the dealer and manufacturer to provide after sale service to the consumer/buyer of the vehicle during the period of warranty. So, the complainant is entitled to get his vehicle repaired from the ops no.1 and 2 free of cost under the period of warranty and non providing services to the complainant for repair of the vehicle clearly amounts to deficiency of service and unfair trade practice on their part.
10 However, the complainant has not proved any specific allegation against the op no.3 who financed the vehicle of the complainant. The complainant has alleged that in the complaint that her tractor is suffering from manufacturing defect, so, in these circumstances nothing is to be done by the financer who financed the vehicle. As such the complaint of the complainant against the op no.3 is not maintainable and same is hereby dismissed.
11. In view of the above, we allow the present complaint qua ops no. 1 and 2 and direct the opposite parties no. 1 and 2 to carry out the necessary repair in the tractor of the complainant even by replacing any part and to make it defect free without any costs within a period of ten days from the date of receipt of the tractor in question. We further direct the opposite parties no.1 and 2 to pay a sum of Rs.10,000/- as compensation for harassment and a sum of Rs.2000/- as litigation expenses to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:23.05.2019. Member Member District Consumer Disputes
Redressal Forum, Sirsa.
