DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 193 of 27-04-2010

Decided on : 13-12-2010

1. Beant Singh aged about 50 years

2. Gurnam Singh aged about 55 years

   both S/o Sarwan Singh R/o Village Jeond, Tehsil Phul and District Bathinda.

.... Complainants

Versus

1. International Automobiles through its Partners, G.T. Road, Rampura Phul, Tehsil Phul, District Bathinda.

2. Mahindra & Mahindra Ltd., (Tractor Division), through its Chairman cum M.D. Akurli Road, Kandivli East, Mumbai 400 101.

   ..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member

For the Complainant : Sh. Navneet Garg, counsel for the complainant.

For the Opposite parties : Sh. K K Vinocha, counsel for

opposite party No. 1.

Sh. Sandeep Baghla, counsel for opposite party No. 2.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The complainants have filed this complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act'). The complainants purchased one Mahindra Diesel Tractor Model 605DI, on 14-06-2008 for Rs. 5,23,850/- vide bill/Invoice No. 26 dated 14-06-2008 from opposite party No. 1. The said vehicle was registered with the registering authority, Rampura Phul under R.C. No PB-40-7150. The complainants alleged that opposite party No. 1 has not delivered the big bumper as was committed by them at the time of sale of the said tractor and the tyres of the said tractor showed cracks within six months from the date of purchase. The battery supplied with the tractor was defective and on complaint by the complainants, the opposite parties changed the same but after 15 days it again became defective and when the complainants approached the opposite parties to replace the same, they refused to do so and he under compelling circumstances, purchased a new battery for Rs. 5600/- The clutch plate of the vehicle in question was also in the burst condition. The complainant made complaint to opposite party No. 1 who repaired it but even after repairs the clutch plate gave the same problem and the opposite party No. 1 refused to repair it again. There was also leakage of oil from the lift of the tractor in question and the diesel pump of the tractor was also not working properly. The complainants complained regarding the defects to opposite party No. 1 but the same were not removed. All the defects arose within the warranty period and continued till the date of filing of the complaint, the tractor was within warranty period. The complainants have used the tractor according to the directions of the opposite parties and timely service were got done. The complainants got issued legal notice on 30-01-2010 but to no effect. The complainants alleged that they could not take the proper service of the tractor in his agricultural work and has suffered monetary loss. Hence, this complaint for getting issued directions to the opposite parties to repair the defects and to replace the defective parts of the tractor and also pay them compensation and cost.

2. The opposite parties filed their separate reply. The opposite party No. 1 has taken legal objections that Tractor Battery warranty was of Exide India Ltd., and Tyres warranty was of Apollo Tyres Ltd., which are separate entities. On merits, the opposite party No. 1 admitted that complainants purchased Mahindra 605DI tractor vide Invoice No. 26 dated 14-06-2008 and they were given two years warranty, the terms of warranty documents provided to them. The opposite party provided full services to the complainants as and when they or their representative visited its showroom for getting the Tractor serviced or with any other problem, same was removed and tractor was delivered to the entire satisfaction of such person in token of that satisfaction and such person has signed/thumb marked the satisfaction column/part/voucher regarding job concerned undertaking by the opposite party from time to time. When the vehicle was sold it was not having any defect. The entire tractor including its Bumper as designed and sized, as provided by manufacturer, was delivered to the complainants. Nothing was altered by opposite party No. 1. Tractor tyres if found defective or having manufacturing defect under warranty terms were to be replaced by its manufacturer i.e. Apollo Tyres Ltd., who have not been impleaded as to party to this complaint. The claim of the battery of the tractor was lodged immediately with its manufacturer i.e. Exide India Limited. After lodging claim, battery was handed-over to manufacturer and on checking it was found O.K and as such, the claim was rejected. On 29-04-2008 after running tractor for 50 hours without any complaint Ist free service was done of the tractor.

3. The opposite party No. 2 submitted that contract qua opposite party No. 2 and opposite party No. 1 is on principal to principal basis . The opposite party No. 2 manufactures the products in bulk which are sold to various dealers and opposite party No. 1 after purchasing the vehicle from it, resells the same to the customer. Hence, there was no privity of contract between the complainants and opposite party No. 2. The tractor in question has been sold by opposite party No. 1 to the complainant. The acknowledgement on the retail Invoice No. 26 dated 14-06-2008 issued by opposite party No. 1 confirmed the delivery of Front Bumper Heavy. The clutch of the tractor has been repaired under warranty vide Job No. JB 0001400 dated 21-09-2009 and after the repair, there was no problem in the clutch and opposite parties never refused to repair it. The necessary repair of Hydraulic Lift had been done vide Job No. 00001700 dated 16-11-2009. There was no complaint with respect to the Diesel Pump ever made by the complainant till date. The dealer i.e. opposite party No. 1 has always intended to provide services to the complainant but he had failed to turn up.

4. The parties have led evidence in support of their respective pleadings.

5. We have heard the arguments at length and have gone through the record and perused written submissions submitted by the parties.

6. The learned counsel for the complainant submitted that complainants have purchased the tractor for agricultural purposes on14-06-2008 for Rs. 5,23,850/- vide bill/invoice No. 26 dated 14-06-2008 of Mahindra Diesel Model 605DI. The vehicle in question started giving problem, which occurred due to manufacturing defect, such as tyres of the said tractor got cracked within six months from the date of purchase and complainant had lodged the complaint with opposite party No. 1 but till date the tyres were not replaced. The battery supplied with the tractor was defective one and the complainant made a complaint in this regard and the battery was replaced after 15 days with an old battery. Under compelled circumstances, the complainant had to purchase a new battery for Rs. 5600/-. The clutch plate was also in the worse condition. The opposite party No. 1 repaired it but even after repairs, the same problem continued. There was another problem of leakage of oil from the lift. The diesel pump of the tractor is not working properly. Besides of these allegations, the complainants alleged that opposite party No. 1 has not delivered the big bumper of the tractor as was committed by them at the time of sale of the said tractor. The learned counsel for the complainant further submitted that all these defects have arisen within the warranty period and even today, the tractor is within warranty period. The complainants have used the tractor according to the directions of the opposite parties and got is serviced in time. The opposite parties have failed to remove the defects. The learned counsel for the complainants further submitted that tractor was purchased by the complainants on 14-06-2008 and the warranty of the tractor was of two years but the opposite parties have tried to prove that delivery of the tractor was given prior to the date of purchase.

7. On the other hand, the learned counsel for opposite party No. 1 has submitted that warranty of battery of the tractor is of Exide Industries Ltd., and that the warranty of tyres of the tractor is of Apollo Tyres Ltd., which are separate entities that the respective warranties were provided to the complainants at the time of giving other documents i.e. bills, manual book and warranty etc., The complainant lodged the claim for the battery to the manufacturer on 15-04-2009 which was rejected by the manufacturer i.e. Exide India Limited, on 22-04-2009 after finding the same to be okayed. Regarding warranty of tyres, it was submitted that complainant did not produce the tyres to the authorised Technician. The legal notice sent by the complainants duly replied by the opposite parties. The learned counsel for opposite party No. 1 further submitted that complaint is bad for non-examination and non-production of expert opinion regarding job done and with regard to allegations as required under Section 13 of the 'Act' and other provisions of Law. The complainants themselves or their representative whenever brought the tractor for getting it serviced or repaired under warranty, have received it back after getting the job done to their entire satisfaction in that respect they have signed satisfactory note/part of job card/voucher. The learned counsel for opposite party No. 1 raised objection that complaint is bad for non-joinder of Exide India Limited and Apollo Tyres Limited as part to the complaint. The learned counsel for the opposite party No. 1 further submitted that tractor is a mechanical product manufactured by its manufacturer. Thousands of components and sub-components are used in making the product final. Thereafter on completion of various tests by Technicians and Engineers in factory of manufacturers, vehicle is okayed for sale. The learned counsel for the opposite party No. 1 submitted that since the complainants purchased the tractor, they have come for getting the vehicle serviced free of costs or with problems if any, details of which is as under :-

   1. On 29-04-2009 after running tractor for 50 hours without any complaint for 1^st free service which was done on the same day.

   2. On 8.8.2008 after running tractor for 323 hours for getting 2^nd free service and with the problem, lift not working properly, gear sound, alignment out, front axle grease. The vehicle was serviced and problems were removed to the satisfaction of the complainants.

   3. On 13-11-2008 after running tractor for 620 hours without any complaint but for getting next free service.

   4. On 29-11-2008 after running tractor for 654 hours with the problem that of gear oil which was less than normal and that rear tyres of tractor were cracked. Gear oil was completed. Regarding tyres claim was to be lodged with Apollo Tyres Ltd., and complainant was advised to produce tractor for inspection of tyres.

   5. On 13-7-2009 after running tractor for 1132 hours without any complaint for getting 4^th free service.

   6. On 21/22.9.2009 after running tractor for 1188 hours with the problem of gear sound, clutch adjustment etc., Parts under warranty terms were changed free of cost and defects were removed.

   7. On 12-10-2009 after running tractor for 1410 hours for getting 5^th free service and with the problem that lift was not working and diesel pipe leaking. Vehicle in question was serviced and problems were removed after replacing replaceable parts under warranty terms free of costs.

   8. On 27-03-2010 after running tractor for 1498 hours came with the problems relating to clutch, gear, pump and lift. Problems were removed. All the times after completing the job complained for, vehicle was delivered to the complainants or their representative to their entire satisfaction. In token of satisfaction, complainant or their representative have signed/thumb marked job satisfaction note.

8. The learned counsel for opposite party No. 2 submitted that complainant is not consumer of opposite party No. 2 under Section 2(d) of the 'Act' and contract of opposite party No. 1 and opposite party No. 2 is on principal to principal basis. The opposite party No. 2 manufactures the products in bulk, which are sold to its various dealer who resells the same to the customers. Hence, there is no privity of contract qua the complainants/customers and the opposite party No. 2. The learned counsel for opposite party No. 2 raised objection that vehicle has been used by the complainants for commercial purposes to generate profits. The acknowledgement on the retail invoice No. 26 dated 14-06-2008 issued by opposite party No. 1 confirms the delivery of Front Bumper heavy. The complainants have failed to prove that there was any manufacturing defect in the tractor. The problems regarding battery and tyres are to be reported to their respective manufacturers. The claim regarding Exide battery was repudiated by the manufacturer as it was okay and was handed over to the complainants. The allegation regarding purchase of new battery was false. The warranty of battery is to be given by the manufacturer of the battery and opposite party No. 2 has no concern with it. The clutch of the tractor has been repaired under warranty vide Job No. JB0001400 dated 21-09-2009 on free of cost. The opposite party No. 1 has also done necessary repair of Hydraulic Lift vide Job No. 00001700 dated 16-11-2009 without charging any cost. There was no complaint with respect to the Diesel pump.

9. The opposite parties have taken legal objections that complainants have been plying their vehicle for commercial purposes and to generate profit. No such documentary evidence has been produced on file by the opposite parties to prove their this version.

   The opposite parties have submitted that warranties regarding battery and tyres were to be given by their respective manufacturer. In the present case, the complainants have purchased the tractor from the opposite parties. In that case, it is not possible for the complainants not to approach different manufacturer for different components as he had purchased the vehicle as a single product of one Company under the brand name “Mahindra & Mahindra”. If there are defects in the tyres and battery, it is the duty of the manufacturer/dealer to get the defective part replaced from the manufacturer of its own.

10. The complainant has placed on file affidavit Ex. C-3 of Sh. Bakshish Singh who is the owner of Vishavkarma Tractor Works, Bathinda-Barnala Road, Tajo Kanchia, Tapa, District Baranala and is himself working as Mistry in his workshop. He has deposed in paras 3,4 and 5 of his aforesaid affidavit that he has checked the tractor in question and found that clutch plates, pressure plates and wheels were defective and required to be replaced and the expected cost of the same is about Rs.20,000/21,000/-. The diesel pump of the tractor is also defective and it can be repaired by spending about Rs. 7500/-. Further there is also leakage of oil from the lift which is also repairable and estimated cost of its repair is about Rs. 2,000/-. He has also deposed that lobour charges for all the three jobs is about Rs. 2500/- but Beant Singh complainant has not got the tractor in question repaired from him as it was within warranty. The complainant has also placed on file a “Mechanical Report” Ex. C-4 given by Bakshish Singh wherein he has given the same statement as per his aforesaid affidavit. The complainant has purchased a new battery on 15-05-2009 under compelled circumstances after paying Rs. 5600/- as per document Ex. C-5, when the opposite parties refused to change the battery. A perusal of Retail Invoice Ex. C-6 shows that the opposite parties have already given Front Bumper Heavy to the complainant.

11. The opposite party No. 1 requested the complainant vide letter dated 20-04-2010 Ex. R-14 to bring his vehicle for inspection of tyres the English version of which is as under :-

    “As already informed you on telephone, to sort out the matter regarding complaint of your tyres, the officer/engineer of Apollo Tyres is visiting agency of opposite party No. 1 at Rampura Phul on 24^th April, 2010 at about 2.00 p.m. You are requested to bring your tractor to our agency at Rampura Phul. Since warranty period of tyres is going to expire on the aforesaid date, we will not be responsible for any claim and thereafter you will direct deal with Apollo Tyres.”

12. The complainant has failed to got his vehicle inspected despite above said letter of opposite party No. 1. Thus, this Forum is of the view that it was for the complainant to get the tyres of the vehicle in question inspected for the officer/engineer of Apollo Tyres, which he has failed to do so. Hence, the tyres could not be replaced within the warranty period due to lapse on the part of the complainant and the opposite parties are not liable for the same.

13. The opposite parties have admitted that complainants had regularly brought the vehicle in question either for free services or for some repairs and they have specifically admitted that on 8.8.2008, there was problem in the tractor i.e. lift was not working properly, gear sound alignment out, front axle grease. On 29-11-2009 there was problem i.e. gear oil was less than normal, rear tyre of tractor was cracked. On 21/22/-09-2009, there was problem of gear sound, clutch adjustment etc., and parts under warranty terms were changed. On 12-10-2009, there were problems relating to lift as it was not working, diesel pipe leaking and on 27-03-2010 there was problem of clutch, gear, pump, lift not working. Thus, above said admission on the part of the opposite parties leads us to the conclusion that complainant kept on visiting the opposite parties after short intervals due to defect in the tractor one after another and repeated defects in some of the parts. Some of the parts such as Gear problem, diesel pipe, pump, lift not working, clutch suffered repeated problem and opposite party No. 1 failed to rectify the defects which amounts to deficiency in service on the part of the opposite parties.

14. In view of what has been discussed above, this complaint is accepted with Rs. 30,000/- as compensation and Rs. 5,000/- as cost.

    i) The opposite parties are directed to replace the following defective parts of the vehicle in question with original new branded parts, which suffered repeated defects and get satisfaction note signed from the complainants in token thereof -

    1) Gear Box

    2) Diesel Pump

    3) Diesel Pipe

    4) Rectify Hydraulic lift problem

    5) Clutch plate

ii) The opposite parties are also directed to Refund Rs. 5600/- spent by him being the cost of new battery, to the complainant.

The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of cost and file be consigned to the record.

Pronounced :

13-12-2010

(Vikramjit Kaur Soni)

President

(Dr. Phulinder Preet)

Member

(Amarjeet Paul)

Member