Haryana

Ambala

CC/141/2013

SUKHBIR SINGH - Complainant(s)

Versus

ESCORTS LIMITED - Opp.Party(s)

A.K KAUSHIK

05 Jul 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                                      Complaint Case No. : 141 of 2013

          Date of Institution    : 10-06-2013

          Date of Decision      :  05-07-2017

Sukhbir Singh son of Sh. Mam Raj, resident of Village Budion Tehsil Barara Ambala City.

……Complainant.

Versus

1.         Escorts Limited, Agri Machinery Marketing Division, 18/4 Mathura Road, Faridabad 121007 (Haryana).

2.         M/s S.D. Trading Corporation, Head office at Civil Hospital Road Ambala City.  

……Opposite Parties

Complaint Under Section 12 of the Consumer Protection Act.

BEFORE:       SH. D.N. ARORA, PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.

                        MS. ANAMIKA GUPTA, MEMBER.                       

Present:          Sh. Anil Kumar Kaushik, counsel for complainant.

                        Sh. U.S. Chauhan, counsel for OPs.

ORDER.                             

                        In nutshell, brief facts of the present complaint are that on 31-03-2012 complainant purchased FARMTRAC 60 Tractor by making the payment of Rs. 5,70,000/- from OP No. 2 bearing Engine No. E2240950 chassis No. T2237528 now registration No. HR 54A 7972 herein after called “Tractor”. It is submitted that when the complainant started using the said tractor, he found that the alignment of the tractor was not proper and always out, the tractor heats up quickly while in use but its meter shows it normal, the engine of tractor shows the stem. Moreover, the tractor should consume 4½ ltd. fuel in one hour but it consumes more than 9 ltrs. in one hour. Besides this, the said tractor also not taking load properly while using the same with “Hairo, Trailor, Rootavator, Troly, Suhaga” etc. When the complainant brought his tractor for periodic maintenance/ service with the OP No. 2, all the above mentioned defects were explained by the complainant to the opposite parties. The opposite parties had engaged their company engineer to remove the defects of the tractor. But they failed to do so. The engineers of the opposite party No. 1 had opened the engine and change the fuel pump of the tractor. But said defects could not be removed. That upto 27-03-2013 the tractor of the complainant had run only for 240 hours. Before start of wheat harvesting season, the complainant on 27-03-2013 approached  the OP No. 2 with the said defects but the OP No. 2 put the complainant on one pretext or other and lastly on 15-04-2013 at the time of harvesting the crop of wheat the tractor of complainant started throwing excessive steam and heated up badly due to which the complainant had to stop the harvesting and had to hire another tractor for harvesting the wheat crop and to pay Rs. 65,000/- to its owner of another tractor/hirer. The complainant in compelling circumstances got issued a legal notice dated 02-05-2013 through his counsel which was duly received by the opposite parties. The opposite parties have no respect for law, as they ignored the legal Notice dated 02-05-2013.  Hence the complainant has prayed that the opposite parties be directed to replace the tractor, to pay Rs. 5,70,000/- as compensation and to pay Rs. 2,00,000/- on account of harassment, mental agony and cost of litigation, to the complainant.

2.                     Upon notice, OP No.1 appeared through counsel and filed reply  raising preliminary objections qua maintainability of complaint and complaint being false and frivolous. Further it has been submitted that the tractor delivered is of top quality and duly inspected and tested by the opposite parties, further the complainant purchased the same only after fully satisfying himself with the condition and quality of the tractor by taking trial and made the payment against the same after attaining the complete satisfaction. This is evident from the complainant satisfaction Note dated 21-03-2013 duly signed by the son of the complainant as the complainant was not available. From the said satisfaction note it is clearly evident that the allegation of the complainant with regard to the excessive fuel consumption is totally frivolous and vexatious. The complainant never cared to get the service of his tractor done in time. The fact is evident from the job card No. 3747 dated 23-07-2012 which clearly shows that the complainant got the first service of the traction in question after 4 months from the date of delivery at 91.4 hours running hours which is not in compliance with the mandatory service schedule and as per schedule first service will be conducted at 50 Hrs or one month from the date of purchase, this shows the extreme negligent behavior of the complainant. The Hon’ble National Commission in the case titled as “Escorts Limited v. N.K. Dasappa, 1995 (2) CPR 196” has held that the company cannot be made liable for the defect that arise in the tractor due to improper handling of the same by the complainant. The complainant has not annexed report of any independent expert as defined u/s 2 (1)(a) of Consumer Protection Act or any other documents, to substantiate the alleged defects. The Hon’ble National Commission in the matter of M/s Scooters India Limited & Another v. Madhabandanda Mohanty & others, II (2005) CPJ 136 NC, has observed that the burden to prove the defect would be on the consumer. It has to be shown that the use of the vehicle has been substantially impaired on account of the defects. Further if the defects are insignificant that could not be a case of replacement or refund. It is further submitted that the warrant in the given case is given for the one year from the date of purchase. The Hon’ble Supreme Court of India in the reported case of Maruti Udyog Limited v. Susheel Kumar Gabgotra & Another, cited as II (2006) CPJ 3 (SC) has held that an order for any relief outside the terms and conditions of the manufacturer warranty cannot be sustained. It is further submitted that reasons of excessive fuel consumption is not manufacturing defect but due to any among ; Adulterated fuel, more idle time, wrong gear selection can increase fuel consumption by 30% and reduce field output by 50 %., use of oversize implement also result in waste of fuel, if regular servicing of the tractor and recalibration of the fuel injection pump is not done, bad air filtration and fuel filtration also increases fuel consumption and oversize as well as under size implement increases fuel consumption. In order to provide satisfactory service to the complainant, the OP arrange the visit of the manufacturer of the respective part i.e. Bosch to get the FIP of the complainant calibrated from its manufacturer BOSCH on 15-03-2013 and the time was given to check diesel consumption test on 21-03-2013, the tractor was tested with 8*8 harrow and diesel consumption was only 5.5 liter per hour. As such, there is no fault on the part of answering OP and hence, the present compliant be dismissed with costs.

                        Counsel for the OP No. 2 has not filed separate reply to the complaint but he has made a statement that the written statement filed on behalf of the OP No. 1, be read as such in reply on behalf of the OP No. 2.

3.                     To prove his version, counsel for complainant tendered affidavits of Sukhbir and Satpal as Annexure CX and CY alongwith documents as Annexures C1 to C-12 and closed the evidence. On the other hand, counsel for OPs tendered affidavit Annexure RX alongwith documents as Annexure R1  to R-6 and closed their evidence. 

4.                     We have heard learned counsel for the parties and gone through the record very carefully. It is admitted that the complainant purchased a tractor from the OP No. 2 as per annexure C1 on 31-03-2012. The case of the complainant is that the tractor should consume 4½ ltd. fuel in one hour but it consumes more than 9 ltrs. in one hour and the said tractor also not taking load properly while using the same with “Hairo, Trailor, Rootavator, Troly, Suhaga” etc. He further contented that on 15-04-2013 at the time of harvesting the crop of wheat the tractor of complainant started throwing excessive steam and heated up badly due to which the complainant had to stop the harvesting and had to hire another tractor for harvesting the wheat crop and to pay Rs. 65,000/- to its owner of another tractor.

                        On the other hand, counsel for OPs has argued that the complainant never cared to get the service of his tractor done in time. He further argued that as per the job card No. 3747 dated 23-07-2012 annexure R3, the complainant got the first service of the traction in question after 4 months from the date of delivery at 91.4 hours running hours which is not in compliance with the mandatory service schedule and as per schedule first service will be conducted at 50 Hrs or one month from the date of purchase, this shows the extreme negligent behavior of the complainant. The complainant has not annexed report of any independent expert as defined u/s 2 (1)(a) of Consumer Protection Act or any other documents, to substantiate the alleged defects. In order to provide satisfactory service to the complainant, the OP arrange the visit of the manufacturer of the respective part i.e. Bosch to get the FIP of the complainant calibrated from its manufacturer BOSCH on 15-03-2013 and the time was given to check diesel consumption test on 21-03-2013, the tractor was tested with 8*8 harrow and diesel consumption was only 5.5 liter per hour as per annexure R4. The counsel for the opposite parties contended that the son of the complainant has given the satisfaction Note dated 21-03-2013, which shows that there is no any defect in the tractor in question even then during the warranty period.

                        However, during the pendency of the case, to decide the controversy between the parties, this Forum had appointed a local commissioner, who submitted its report on 11-11-2016, wherein it is stated that the average of tractor on full load is 6 ltrs per hour and without load is 2 ltrs per hour and further alignment was found out during the checking. It is further stated that the temperature meter found correct during checking.

                        Thereafter, counsel for the complainant filed objections to the report of Local Commissioner, vide which it is stated that the Local Commissioner had not put full load while testing the Tractor. The local commissioner despite request did not use the Rutavator, Trailer and Herron while testing whereas it is specifically informed to him that when the Tractor runs for an hour than it left the load and did not work properly. The Local Commissioner has tested the tractor in their premises only not in the fields and all tests/inspections were conducted in the absence of the complainant.

                        In view of the aforesaid objections raised by the complainant, this Forum observed that it is appropriate that to send the same Local Commissioner to give the detailed report and inspect the vehicle in the field as well as in the presence of the both parties. Accordingly, the Local Commissioner submitted his report to the effect that according to test of the tractor in field, the consumption of fuel is 5.310 ltrs per hour. The temperature meter was found correct. Apart from this, wheel alignment was checked, which was found out.  Further stated therein that at the time of full load the tractor in question was giving the less RPM (Round). Both parties have not raised any objections to the above said report.   

5.                     After hearing learned counsel for the parties and going through the record, it is clear that the complainant has not got done the service of tractor as per warranty clause/norms of the company and as per report of Local Commissioner, no manufacturing defect was found in the tractor.  However, in the interest of justice and to curb down litigation, it is appropriate to give the directions to the opposite parties to change the fuel pump of the tractor in question as free of cost and complainant is also entitled the cost of proceedings, which is assessed to the tune of Rs. 5,000/-. Accordingly, we partly allow the present complaint and direct the OPs to comply with the following directions within thirty days from the communication of this order:-

1. To change the fuel pump of the tractor in question as free of cost.
2. To pay Rs. 5,000/- as cost of litigation.

 

                                                                                                      Sd/-

ANNOUNCED: 05.07.2017.                                               (D.N. ARORA)

                         PRESIDENT            

 

                                                                                                  Sd/-

(PUSHPENDER KUMAR)  

                                                                                                MEMBER      

 

                                                           

                                                                                    (ANAMIKA GUPTA)

                                                                                                MEMBER