Complainant Mula Singh through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has sought issuance of necessary directions to the opposite party to make the tractor fit for use or replace the defective tractor with a new one or to take back the Tractor in question and to refund full price of the same alongwith interest @ 12% from the date of its purchase till actual realization. Opposite party be also directed to pay Rs.2,00,000/- as compensation on account on mental agony, non utilization of the vehicle, physical harassment, financial loss caused by the opposite party on account of deficiency in service and Rs.10,000/- as litigation expenses, in the interest of justice.
2. The case of the complainant in brief is that he is an agriculturist by profession and he purchased a Tractor make Swaraj 855 bearing Chassis No.WYCB 61929986913 Engine No.473030 STB 06332 from the opposite party on 27.6.2014 for Rs.6,20,000/-. The tractor is defective from the very first day of its delivery. It is giving so many troubles. There are major manufacturing defects in the tractor i.e. complete front Axel is defective, front right tyre was defective, Crank seal of the Engine is leaking, Diesel pump is leaking from all joints, whole of the clutch including clutch plates are defective, PTO seals are leaking, PTO Liver seals are leaking, the oil was leaking from all the rubber rings/joints. Even there are also other defects in the Tractor and output of the tractor is of very low standard. The tractor is also not working properly and the same is lying off road from the date of its purchase. The opposite party has delivered 2014 Model Tractor to him, but pump of the Tractor is of 2013 Model and Tyres are of 2014 Model, Besides this the Chassis number and Engine number of the traction mentioned in the bill is WYCB 61929986913 & 473030 STB 06332 respectively but the tractor which is supplied/delivered to him actually bearing chassis No.CB 6168986766 and Engine No.STBO-3198 and from all these facts it is crystal clear that there is deficiency and negligence in service on the part of the opposite party. He has further pleaded that after using the tractor some time, its engine also became defective and he took his tractor to the opposite party and disclosed all the defects. The foreman of the opposite party told that head of the tractor is leaking but the opposite party asked his foreman to replace the head gas cut. Even he raised objection that the tractor is within warranty and to replace the same on account of above mentioned defects, but the opposite party forcibly repaired Gas cut of the tractor. He is an agriculturist suffered huge financial loss as could not use the tractor ploughing his land he was forced to hire services from someone other for this purpose by making payment. In this way, he had suffered financial loss more than Rs.1 lakhs in the harvest season of last paddy crop and even till today he is suffering huge financial loss for no fault on his part. The tractor is still lying on road. He lastly pleaded that opposite party is liable for making the tractor roadworthy or for replacement of the defective tractor with new one and also to pay compensation to the tune of Rs.2,00,000/- alongwith interest @ 12% P.A. from the date of purchase of the tractor. Hence this complaint.
3. Upon notice, the opposite party appeared and filed its written reply through the counsel by taking the preliminary objections that the present complaint is not maintainable; complaint is bad for non-joinder of necessary party. The manufacturing company of the Tractor in question has not been impleaded and the complainant does not fall within the category of consumer as the tractor in question is not being used for personal necessity rather it is being used as commercial vehicle, therefore, complainant is not competent and the complaint is liable to be dismissed. On merits, it was submitted that the complainant is not an agriculturist by profession. He owns hardly one acre of land. Actually he is engaged in commercial activities like transporting of sand, bricks, soil etc. He is using his Tractor as commercial vehicle and not for agricultural purposes. However, it was admitted that he has purchased the Tractor make SWARAJ 855 bearing chassis No.WYCB61929986913, Engine No.473030 STB 06332 from the opposite party on 27.06.2014 worth Rs.6,20,000/-. It was also admitted that the opposite party is authorized dealer of Swaraj Tractor. The tractor is working properly till date and there is absolutely no manufacturing defect in it. Due to rough handling and use the alleged defects might have cropped up. This may be the result of negligence of complainant himself and he cannot blame the company. As per rules and instructions of the company, the complainant was entitled to four free engine services from the company workshop, first after 60 hours of the usage, second after 310 hours, third after 560 hours and 4th after 810 hours of its usage and its usage is shown in the hour meter of the tractor. However the complainant came to the workshop after usage of 66 hours. However it was handed over to him after normal satisfactory service. Again the complainant came on 3.7.2014 after the use of 510 hours and made a complaint of head water leakage. The complete kit of rubber parts was changed free of cost and handed over to the complainant in a satisfactory condition. Inspite entitlement of four free services as mentioned above, the complainant never brought the vehicle for service, which shows negligence of the complainant himself. The complainant was delivered 2014 model tractor on 8.3.2014. The pump of the tractors delivered till 31 March of every year bear the model of the previous year. It has been next submitted that the complainant has not made full payment of the tractor to the opposite party. He was bound to make the full payment upto 30.04.2014 and in case of default he was liable to pay interest @ 24% per annum as per the agreement dated 8.3.2014. The complainant has filed this false and frivolous complaint against the opposite party just to avoid balance payment. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.
4. Complainant tendered into evidence his own affidavit Ex.C1 and of Sh.Ninder Singh Ex.C4, alongwith other documents Ex.C2 & Ex.C3 and closed the evidence.
5 Opposite party tendered into evidence affidavit of Sh.Gurpreet Singh son of Sawinder Singh Ex.OP1 and of Mandeep Singh Ex.OP-14, alongwith other documents Ex.OP2 to Ex.OP-13 and closed the evidence.
6 We have carefully examined all the documents/evidence available on the complaint records (as produced by litigants) in the backdrop of the arguments as put forth by their learned counsels while adjudicating the present complaint. We find that the complainant has sought the relief(s) with inter-se alternatives as of: i) either ‘satisfactory & standard’ repairs to ‘Tractor’ so as to remove the inherent manufacturing ‘defect’ in full & permanently or ii) ‘replacement’ of the allegedly ‘defective’ Tractor with a fresh one or iii) ‘refund’ of the full cost of Tractor with interest; along with ‘relief’ of compensation alleging the Tractor to be inherently infested with ‘manufacturing defect’ as detected and revealed on the very first day of its delivery. Interestingly, the complainant has stated (paragraph ‘4’ of the complaint) that the Tractor in question has been lying ‘off-road’ from the date of its purchase whereas in the opening lines of its paragraph ‘5’ he reports that after using ‘Tractor’ for some time its ‘Engine’ also turned ‘defective’. Further, it is complained that the Tractor’s Chassis No. and Engine No. as printed/mentioned out on the ‘Invoice’ do not tally with that ‘imprinted’/engraved physically on the Tractor. However, the complainant has somehow did not produce any documentary evidence to prove any of the above allegations as of: i) inherent ‘manufacturing’ defect; ii) ‘off-road’ lay-of parking of the Tractor on account of manufacturing defect since the date of its purchase; iii) supply of the one Tractor with chassis & engine nos. different than that on the related Invoice; rather his affidavit Ex.C3 in paragraph ‘3’ deposes that the inherent manufacturing ‘defects’ surfaced in the ‘engine’ after 300 Hrs of ‘run-in’ by the Tractor. Also, the affidavit Ex.C4 cannot be legally equated to the requisite ‘expert opinion’ since the deponent has not disclosed his ‘professional’ qualifications, training & experience etc and simply claimed to be a ‘tractor mechanic’ without even producing and documentary evidence supporting the said claim. On the other hand, the OP vendor has produced payment-agreement Ex.OP2; delivery-note Ex.OP5; temporary RC Ex.OP6; job-cards Ex.OP8 & Ex.OP9 in all of which the chassis & engine nos. do tally with one another. Surprisingly, the related Invoice has not been produced on the complaint proceedings by any of the litigants. Further, the OP’s allegation of ‘commercial purpose & usage’ stands proved since the photographs Ex.OP10 to Ex.OP13 & affidavit Ex.OP14 have neither been rebutted nor contested by the complainant. To top it all, the OP vendor did file an application dated 21.08.2015 for appointment of Local commission to examine the Tractor in question and report on the complainant’s claim that it stood parked ‘off-road’ on account of ‘manufacturing defect’ whereas the said Tractor has been ‘extensively’ in working-use as has been evident in the accompanying (but un-exhibited) RC and photographs of Tractor’s chassis & engine nos.; Hour-Meter and Tyres etc. Somehow, the complainant for reasons best known to him alone reacted to the said application by way of seeking an adjournment for filing of ‘transfer-application’ before the State Commission, Chandigarh. We had disposed of the ‘adjournment’ request vide interlocutory orders dated 21.08.2016 vide which the prayed ‘adjournment’ was allowed to seek transfer of the complaint. However, the hereinto referred transfer application has been ‘dismissed in default’ vide the orders dated 03.12.2015 of the honorable State Commission and we are again seized up with the complaint matter for adjudication on merits under the Act.
7 In the light of the above narratives/recitals, we are of the considered opinion that the complainant here has failed to prove the allegations as put forth in the body of his complaint and there has been no legally ‘proved’ instance of ‘infringement’ of his consumer rights at the hands of the OP vendor and thus we ORDER for the dismissal of the present complaint with however no orders as to the costs, here.
8 Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
March 11, 2016 Member.
*MK*
