Haryana

Ambala

CC/234/2018

Surinder Singh - Complainant(s)

Versus

Kamboj Automobiles - Opp.Party(s)

10 Jul 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.:  234 of 2018.

                                                          Date of Institution         :   01.08.2018.

                                                          Date of decision   :   10.07.2019.                     

Surinder Singh son of Shri Avtar Singh, r/o H.No.506, Sector-20, Defence Colony, Ambala Cantt.

                                                                                      ……. Complainant.

1. Kamboj Automobiles, Hissar Road, Ambala City through its Proprietor.
2. M/s Indo Farm Equipment Ltd., Baddi, Distt. Solan, through its Managing Director.

    ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.                                             

Present:       Smt. Jaswinder Kaur Kang, Advocate, counsel for complainant.

Shri Naveen Kumar, Advocate, counsel for the OP No.1.

Shri D.S. Punia, Advocate, counsel for OP No.2.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To replace the vehicle in question with new one or to refund its cost alongwith interest @18%.
2. To pay Rs.2,00,000/- as compensation for the mental agony and physical harassment suffered by the him.
   382.  

                   Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that the complainant had purchased one tractor having Chassis No.FNT3055NV002322, Engine No.C328606462NT, from OP No.1, manufactured by OP No.2, vide Invoice dated 13.07.2016 for a sum of Rs.6,64,000/-. Immediately after the purchase, one side rim of wheel of said tractor got bend and on his complaint, the OP No.1 fixed temporarily rim, but after few days, the said problem/trouble again occurred. The complainant visited the office of OP No.1 firstly on 16.08.2016 with the complaint of defect in the rim and again on 28.01.2017 and lastly on 13.04.2017, but the same problem occurred again. Basically the bending of the rim is due to the excel problem and the same could not be rectified by the OP No.1, even after repairing the tractor twice under warranty. A legal notice dated 12.01.2017 was duly issued to the OPs, but no action was taken by them, even after receiving the same. Even after repeated repairs, the said problem could not rectified by the engineers of the OP No.1, which clearly shows that there is manufacturing defect in it. By selling a tractor, having manufacturing defect, the OPs have committed deficiency in services. Hence, the present complaint.  

2.                 Upon notice, the OP No.1 appeared through counsel and filed written version and has raised preliminary objections regarding maintainability and concealment of true & material facts. On merits, it is stated that the defects occurred in the tractor, due to rough handling by the complainant. The defects were rectified by the authorized service centre without any delay and the tractor was handed over to the complainant to his satisfaction. It is vehementally denied that the OP No.1 had not taken any action after receiving the notice dated 12.01.2017. The tractor was repaired second time on 18.03.2017 by the OP No.1. The complainant has filed the present complaint just to build pressure and to harass the OP No.1 and prayed has been made for dismissal the same with costs. 

3.                Upon notice, the OP No.2 appeared through counsel and filed written version and has raised preliminary objections regarding maintainability and cause of action. On merits, it is stated that the complainant was using the tractor in question for heavy commercial activities beyond the prescribed load capacity of the tractor, resulting into, bend of its rims, excel. The tractor in question was repaired by the dealer despite its misuse by the complainant and all defects qua the rims/excel were removed by the dealer i.e. authorized and specific service agency of answering OP. Even otherwise, the complainant never informed the OP No.2 about the manufacturing defect in it. However, on the request of dealer i.e. OP No.1, the rims and excels were supplied to the dealer, who repaired the tractor of the complainant to its satisfaction. The complainant has filed this false complaint just to extract money from the OPs and prayed that same may be dismissed with heavy costs.    

4.                The ld. counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-11 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP No.1 tendered affidavit of Shri Harbinder Singh, Proprietor of Kamboj Automobiles, Hissar Road, Ambala City, as Annexure OP1/A and closed the evidence on behalf of OP No.1. The learned counsel for OP No.2 tendered affidavit of Shri Gautam Pathania, Authorized Representative of M/s Indo Farm Equipments Ltd., Solan (HP) as Annexure OP2/A alongwith document Annexure OP2/1 and closed the evidence on behalf of OP No.2.

5.                 The learned counsel for the complainant has argued that the tractor of the complainant which he purchased from OP No.1, manufactured by OP No.2, vide Invoice dated 13.07.2016 for Rs.6,64,000/-, got defected immediately after its purchase. The one side rim of the said tractor got bend and even after repeated repairs, the said problem could not rectified by the engineers of the OP No.1, which clearly shows that there is manufacturing defect in it. This fact further got corroborated from the report of the local commissioner Annexure C-11. By selling a tractor, having manufacturing defect, the OPs have committed deficiency in services

6.                Contrary to it, the learned counsel for the OP No.1 has argued that the defects occurred in the tractor, due to rough handling by the complainant. Whenever the complainant approached it, he was attended properly and needful was done immediately. Even otherwise, if there is any manufacturing defect in the tractor, then as per warranty, needful has to be done by the OP No.2 only being the manufacturer. The complainant has filed the present complaint just to build pressure and to harass the OP No.1, therefore, the complaint filed against it, may be dismissed with costs. 

7.                The learned counsel for the OP No.2 has vehementally argued that the complainant had purchased the tractor in question for the commercial purposes, thus he is not a consumer under the CP Act, 1986. The complainant was using the said tractor for heavy commercial activities beyond the prescribed load capacity of the tractor, resulting into, bending of its rim, excel. Even otherwise, the complainant never informed the OP No.2 about the manufacturing defect in it. However, on the request of the dealer i.e. OP No.1, the rims and excels were supplied to the dealer, who repaired the tractor of the complainant to his satisfaction. The complainant has filed this false complaint just to extract money from the OPs and prayed that same may be dismissed with heavy costs.    

8.                It may be stated here that the allegation of the OP No.2 that the complainant has purchased the said tractor for commercial purpose and is using it for heavy commercial activities, is not tenable, because, nothing has been produced by it, to prove the said fact. Admittedly, the complainant purchased the tractor in question from the OP No.1, manufactured by Op No.2, for a sum of Rs.6,64,000/- vide Invoice dated 13.07.2016 (Annexure C-6). From the Warranty Claim Form (Annexure C-1), it is evident that on 16.08.2016, the complainant complained about the problem of deflection in rear wheel rim of the tractor, meaning thereby, tractor in question got defected within about one month from the date of its purchase. Further from the perusal of Warranty Claim Forms (Annexure C-2 & C-3), it is revealed that on 28.01.2017, complainant complained about the problem of deflection in rear wheel rim of the tractor and rear wheel shaft. The plea of the complainant is that the OPs failed to rectify the problem inspite of repeated repairs. From the local commissioner’s report dated 17.09.2018 (Annexure C-11), which reads as under:-

          (i)      During the inspection it was observed that the rear right wheel                           wobbling heavily.                                                                                       (ii)     It was stated by the owner of tractor and the representative of                            Kamboj Automobiles that this defect was rectified many times in                   the past but the defect still persist.                                                   (iii)    The reoccurrence and persistence of the same defect gives clear                     impression of manufacturing defect.

                   It is quite clear that the tractor in question is having manufacturing defect in it. This report has not been controverted by the OPs. Since the local commissioner has opined that the tractor in question is having manufacturing defect, therefore, if we order for replacement of the defected tractor with the new one of same model, with fresh warranty, it will meet the ends of justice. At the same time, we also hold that complainant is also entitled for the compensation on account of mental agony and physical harassment suffered by him, alongwith litigation expenses.

9.                In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs, in the following manner:-

1. To replace the defected tractor in question with the new one of the same model with fresh warranty.
2. To pay Rs.5,000/- as compensation for mental agony and physical harassment suffered by the complainant, inclusive of litigation expenses.

                   The OPs are further directed to comply with the aforesaid direction jointly and severally, within the period of 30 days from the date of receipt of the certified copy of this order. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :10.07.2019.

 

     (Vinod Kumar Sharma)           (Ruby Sharma)     (Neena Sandhu)              Member                                 Member             President