IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 30th day of June, 2016
Filed on 23.02.2011
Present
1. Smt. Elizabeth George (President)
2. Sri. Antony Xavier (Member)
3. Smt. Jasmine D (Member)
in
CC/No.54/2011
Between
Complainant:- Opposite parties:-
Sri. K.K. Kunjumon 1. Gurudeva Enterprises
Kannattu Chira Dealers for Swaraj Tractors and
Attuvathala Implements, Coimbatore Road
Kainakari P.O. Palakkad – 678 001
Alappuzha
(By Adv. V.N. Kiranlal) 2. Punjab Tractors Ltd., Phase IV
Sahibzada Ajit Singh Nagar
Distt. Ropar (Near Chandigarh) –
160 055, represented by its
Managing Director
(By Adv. S. Gulzar)
O R D E R
SMT. JASMINE D. (MEMBER)
The case of the complainant in short is as follows:-
The complainant purchased Swaraj – 939 tractor from the first opposite party manufactured by the 2nd opposite party on 3.3.2006 for an amount of Rs.4,50,000/- by availing a loan from the Canara Bank, Alappuzha as per the assurance given by the opposite parties. According to the complainant the tractor has many defects right from the beginning which he brought to the notice of the opposite parties. Opposite parties attempted to get the tractor repaired, but the defect were not cured and for this complainant had spent Rs.16,820/-. Thereafter the opposite parties assured to replace the same, but till now the tractor has not been repaired or replaced. The complainant further alleged that the said tractor was not suitable for Kuttanad soil. According to the complainant, he could not use the tractor at any point of time and thereby lost his income. The complainant sustained huge pecuniary loss, mental agony and hardships due to the act of the opposite parties. Hence filed this complaint, alleging deficiency in service on the part of the opposite parties seeking refund of the price of the tractor.
2. The version of the opposite parties 1 and 2 is as follows:-
The complaint is not maintainable. The entire transaction alleged in the complaint took place in the district of Palakkad and this Forum lacks territorial jurisdiction to entertain the complaint. There is no deficiency in service on the part of the opposite parties. The opposite parties or any representatives never approached the complainant as alleged. The complainant approached the first opposite party at the office at Palakkad and enquired about the tractor and he was fully satisfied with the tractor and that at his own accord only he purchased the tractor. The opposite parties never made the complainant believe that the said tractor was defect free. It is submitted that during the guarantee period the complainant never made any complaint towards, the opposite parties about any mechanical defects or any such complaint in respect to the scheduled tractor nor has he made any request for the replacement of the said tractor. It is submitted that after the expiry of the guarantee period the complainant contacted the first opposite party and complained about the said tractor and the first opposite party repaired the said tractor and returned it to the complainant in good condition. The opposite party spent Rs.16,820/- for its repair which the complainant had agreed to pay him. But the complainant gave the opposite party only Rs.6000/- and the balance amount of Rs.10,820/- is still due. The opposite parties submit that if the said tractor has any defects as alleged in the complaint, it is solely due to the misuse and lack of maintenance on the part of the complainant. The complainant was not regular in changing the oil and in applying grease as and when required. Once the mechanic of the first opposite party detected water in the gear box which itself shows the misuse and lack of maintenance on the part of the complainant. The complainant purchased the said tractor by availing a bank loan from Canara Bank, Boat Jetty Branch, Alappuzha and now it is reliably learnt that has made default in paying the installments regularly and that the bank has initiated recovery proceedings against him. To escape from the said recovery proceedings only he has filed this complaint. The complainant has no cause of action against the opposite parties and the complaint is filed without any bonafide. The complainant is not entitled to get any relief as prayed for.
3. The complainant was examined as PW1 and documents produced marked as Exts.A1 to A4. First opposite party was examined as RW1 and documents marked as Exts.B1 to B3. The expert commissioner’s report is marked as Ext.C1 and Advocate Commissioner’s report is marked as Ext.C2.
4. Considering the allegations of the complainant and contention of the opposite parties, the Forum has raised the following points for consideration:-
1) Whether this forum has jurisdiction to entertain the complaint?
2) Whether there is any deficiency in service on the part of the opposite parties?
3) If so whether the complainant is entitled to get the reliefs prayed for?
5. Point No.1:- The Opposite parties raised a contention that this forum has no territorial jurisdiction to try and decide the case and produced Ext.B1 to substantiate the same. Ext.B1 is the new tractor delivery note dated 24.2.06 which shows that the tractor was delivered at Palakkad. Admittedly the complainant purchased the tractor by availing a loan from the Canara branch, Alapppuzha and also he purchased the tractor for using in Kuttanad, Alappuzha Dist. So a part of the cause of action has arisen in Alappuzha Dist. and this Forum has ample jurisdiction to try and decide the case.
6. Point Nos. 2 & 3:- The case of the complainant is that complainant is a farmer and he purchased a Swaraj 939 Tractor from the first opposite party manufactured by the 2nd opposite party with the help of a loan from the Canara Bank, Alappuzha. According to the complainant the tractor shows imperfection right from the beginning which he brought to the notice of the opposite parties. Even though first opposite party repaired the tractor, but the defect has not been rectified. According to the complainant the imperfection of the tractor was due to the inherent defect, and the opposite parties agreed to replace the tractor, but so far it has not been replaced. The complainant further alleged that the supplied tractor was not suitable for Kuttanad soil and he could not use it. The complainant sustained much mental agony, hence filed this complaint.
6. The complainant was examined as PW1 and produced 4 documents marked as Exts.A1 to A4. Ext.A1 is the copy of the certificate of registration, Ext.A2 is the Owner’s manual, Ext.A3 is the delivery letter and Ext.A4 is the copy of Forum No.21. Ext.A1 and A4 marked subject to objection.
7. The highlighting point contended by the complainant is that the tractor shows imperfection immediately after the date of purchase and the said tractor was not suitable for Kuttanad soil. Admittedly the tractor was purchased in the year 2006. However the complaint is filed in the year 2011, after a lapse of 5 years. According to the complainant that the tractor time and again was taken to the first opposite party for getting it repaired. But no document is produced to substantiate the same. According to the complainant, the vehicle was taken to the first opposite party on 10.3.2008 and the same is evidenced from Ext.B2. It was pertinent to note that it was in the year 2008 ie. after 2 years from the date of purchase ie. after the expiry of the warranty. So from these documents we can’t say the tractor was suffered from frequent complaints as alleged by the complainant. Also Ext.C1 report no inherent defect is reported. On perusal of the records produced by the party there is no cogent and concrete evidence is produced to substantiate the allegation that the tractor has inherent defect. So we cannot direct the opposite parties to refund the price of the tractor as prayed for. So the allegation of the complainant that the tractor has inherent defect is not sustainable. The next point alleged by the complainant is that the tractor is not suitable for Kuttanad soil. From Ext.C1 the expert commissioner’s report and Ext.C2 the Advocate Commissioner’s report it is clearly stated that the said tractor is not suitable for Kuttanad soil. It is also stated that it can’t be used in Kuttanad soil, even after repairing also. In the C1 & C2 report it is specifically stated that the tractor was not in a field worthy condition and the present value of the tractor is assessed is only Rs.40,000/-. The complainant is a poor farmer solely dependent on paddy cultivation to earn his lively hood. According to the complainant he purchased the tractor for Rs.4,50,000/- by availing loan from the bank to use the same for earning his livelihood but he could not use the tractor right from the beginning and the opposite parties assured to replace the same and so far it has not been replaced. The opposite parties produced Ext.B3, commercial Test report of Swaraj 939 FE Tractor. But in expert commission report Ext.C1 it is stated that “For Swaraj Tractor, one of the major tractor manufacturing company in India the parameter under worst field condition like Kuttanad might not have been taken into account during testing, by which operational failure can occur. Weight of the machine and Engine Power are important factors in Kuttanad. Farmers and technicians in Kuttanad are not much familiar in the operation and maintenance of Swaraj tractors.”For which the opposite parties have not filed any objection. Therefore on relying Exts.C1 and C2 we can undoubtedly say that the supplied tractor was not suitable for Kuttanad soil. The opposite parties know the fact that the complainant purchased the tractor for using it in Kuttanad. Since the opposite parties had supplied the said tractor to the complainant knowing well that the tractor was purchased for using it Kuttanad soil, amounts to deficiency in service. Since the supplied tractor was not suitable for Kuttanad soil, he could not use the same. The complainant who is a poor farmer, is saddled with a large loan for the purchase of the tractor. The only available remedy for the complainant is to approach CDRF. So the complainant is to be compensated.
In the result, complaint is allowed partly. The opposite parties 1 and 2 are jointly and severally directed to pay an amount of Rs.50,000/- (Rupees fifty five thousand only) towards compensation for the mental agony, financial loss, loss of income and inconveniences caused to the complainant and Rs.3,000/- (Rupees three thousand only) towards costs of this proceedings to the complainant. The order shall be complied within one month from the date of receipt of this order.
Pronounced in open Forum on this the 30th day of June, 2016.
Sd/- Smt. Jasmine.D. (Member)
Sd/- Smt. Elizabeth George (President)
Sd/- Sri. Antony Xavier (Member)
Appendix:-
Evidence of the complainant:-
PW1 - K.K. Kunjumon (Witness)
Ext.A1 - Copy of the certificate of registration (Subject to objection)
Ext.A2 - Owner’s manual
Ext.A3 - Delivery letter
Ext.A4 - Copy of Forum No.21(Subject to objection)
Ext.C1 - Expert commissioner’s report
Ext.C2 - Advocate Commissioner’s report
Evidence of the opposite parties:-
RW1 - Murugadas (Witness)
Ext.B1 - Copy of New tractor deliver note
Ext.B2 - Credit Form-service
Ext.B3 - Attested Xerox copy of Commercial Test Report
//True Copy//
By Order
Senior Superintendent
To
Complainant/Opposite Parties/S.F
Typed by :- Pr/-
Compared by :-
