BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

Complaint No.22 of 2015

                                                                   Instituted On: 12.03.2015

          Decided On: 16.04.2015

Jagtar Singh Son of Mithu Singh, resident of village Burj Hari Singh, Tehsil and District Mansa.

                                                                             Complainant 

Versus 

Land Power Agro Tech India, G.T. Road, Bughipur Chowk, Moga, through its Managing Director Kulwinder Singh Mohar.

                                                                                      Opposite Party

Complaint under section 12 of The

                             Consumer Protection Act, 1986.

Coram:        Sh S.S. Panesar, President

                             Smt Vinod Bala, Member

                   Smt Bhupinder Kaur, Member

Present:     Sh. Visual Jain, Advocate counsel for the complainant.

                 Sh. Ashok Goyal, Advocate counsel for the complainant.

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ORDER

(S.S. Panesar, President)

                  Complainant has brought the instant complaint against  Land Power Agro Tech India, G.T. Road, Bughipur Chowk, Moga, through its Managing Director Kulwinder Singh Mohar for directing the opposite party (a) to replace the front loader in dispute with new one or pay the amount of Rs.90,000/- i.e. price of loader along with interest, (b) to pay Rs.50,000/- as compensation for pecuniary loss, physical and mental agony, (c) to pay Rs.10,000/- as litigation expenses and (d) any other relief which the District Forum deems fit may also be awarded/granted in favour of the complainant and against the opposite party.

2.                Briefly stated the facts of the case are that Jagtar Singh complainant filed instant complaint under Section 12 of the Consumer Protection Act against the opposite party on the allegations that he placed an order with opposite party for purchasing a front loader machine (to lift the dung) from it and paid an amount of Rs.2,000/- on 18.09.2011 to opposite party. Opposite party gave delivery of front loader after receipt of balance amount of Rs.87,500/- on 30.09.2011 vide bill No.410  in favour of the complainant. Opposite party gave one year warranty/guaranty for manufacturing defect, if any, but the opposite party did not issue any warranty/guaranty card to the complainant despite assurance to this fact. Complainant installed the front loader machine at the tractor to operate it for lifting the dung and spreading the same in the fields. The front loader

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machine sold by opposite party to the complainant was of cheap quality with manufacturing defect. The front loader did not work properly rather the machine overturned the tractor instead of pick and lift, in as much as, its balance was not proper. The complainant intimated opposite party telephonically and also requested it time and again to remove the manufacturing defect in machine but it failed to make the front loader work worthy. Later on opposite party expressed its inability to repair the same on account of the manufacturing defect therein. On 14.11.2011, the complainant brought front loader machine in dispute to the office of opposite party for setting it right & to make it free from manufacturing defect, but opposite party got a false report registered against the complainant with the police. Opposite party did not repair the front loader and no information was given to the complainant for taking delivery of the machine. The complainant requested opposite party either to replace the machine or to repair the same to his satisfaction but the request fell on deaf ears. Vide the instant complaint, the complainant prays to replace the front loader machine with new one or to return the sale price of Rs.90,000/- along with interest besides compensation for mental tension, harassment and litigation expenses.

3.                Upon notice, opposite party appeared and filed written reply taking certain legal objections therein, interalia, that the machine was purchased by the complainant at Moga and the payment of price was also made at Moga and the machine was also delivered to the purchaser at

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Moga. No part of cause of action accrued in the territorial jurisdiction of Mansa. The bill was not issued to the customer as the customer did not want to take the bill as he wanted to use it for commercial purpose and not for agricultural purpose exclusively. The complainant declined to receive the payment to avoid the payment of VAT on the sale price. It is denied that there was any manufacturing defect in the machine or there was any defect in the quality thereof. The machine was working properly. Since there is difference in the length of tractor HP make 735 and 855 therefore, there is difference of prize due to that reason. It is settled market practice that goods once sold cannot be returned. It is admitted that the complainant placed an order for purchase of front loader machine with opposite party but opposite party did not issue any bill on the express request of the complainant as stated above. The estimate attached by the complainant cannot be taken to be a bill. It is denied that opposite party ever gave any warranty for the front loader machine to the complainant. It was admitted that front loader machine is used for lifting the dung and putting it in the trolley but it is denied that it was used to spread the dung in the fields as alleged as well. On merits, facts narrated in the complaint were denied and a prayer for dismissal of the complaint with costs has been made.

4.       In his bid to prove the complaint, the complainant Jagtar Singh produced affidavit of Mewa Singh as Ex. C-1 and his own affidavit as Ex. C-2 besides order of estimate Ex. C-3, Ex. C-4 undertaking of the manufacturer and closed his evidence.

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5.       To rebut the aforesaid evidence of the complainant, the opposite party produced in evidence, affidavit of Kulwinder Singh Mohar, Managing Director of opposite party as Ex. OP-1, certificate of importer-exporter code as Ex. OP-2, certificate of incorporation Ex. OP-3 and closed the evidence.

6.                 After hearing counsel for the parties and going through evidence on record the District Consumer Disputes Redressal Forum, Mansa accepted the complaint and accordingly allowed the complaint in terms of the detailed order dated 03.05.2012. Aggrieved of the impugned order, opposite party filed an appeal before the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, which vide order dated 04.07.2014 accepted the appeal holding that District Consumer Disputes Redressal Forum, Mansa had no territorial jurisdiction to entertain the complaint, whereas, the same was entertainable by District Consumer Disputes Redrerssal Forum, Moga. The order passed by District Forum, Mansa was set aside and the case was remitted to District Forum, Moga for deciding the same afresh.

7.                We have heard the learned counsel for the parties and have also carefully gone through the record.

8.       Learned counsel for opposite party has vehemently contended that the complainant has failed to prove the allegations made in the complaint through evidence on record. It was the case of the complainant that front loader machine purchased by him from opposite party suffered from

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manufacturing defect. However, no report of the expert has been produced on record for proving said fact. Rather there is evidence on record that the said machine did not suffer from any manufacturing defect and it was perfectly in order. Complainant has filed instant complaint as an abuse of process of law. No warranty/guaranty certificate has been produced on record for proving that the front loader in dispute was under any warranty/guaranty cover. Complaint is without any merit and the same deserves to be dismissed with costs.

9.       On the other hand, learned counsel for complainant has vehemently contended that it is an admitted case of opposite party that the front loader in dispute has been left by the complainant at the company of opposite party with manufacturing defect forcibly. If the front loader in dispute was not suffering from any defect, there was absolutely no reason for the complainant to leave the same at the company premises belonging to opposite party. Even if it is presumed that the front loader was not suffering from any manufacturing defect even then it was not working properly & therefore, it had to be left at the company premises on 14.11.2011. It has been stated in para No.4 of the complaint as under:-

“4. That the above front loader sold by the Op to the complainant is a very much cheap in quality and was having manufacturing defects. So, the same was not working properly, rather the front loader over turned the tractor in-spite of pick and lift the dung as its balance was not proper.”

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10.     In reply to para no.4, opposite party has nowhere replied to the specific allegations “that the front loader was not working properly rather the front loader overturned the tractor in spite of pick and lift the dung and as its balance was not proper.”  The allegations stated above detailing the defect in the front loader in dispute have not been replied properly rather the reply is totally evasive in nature. In such a situation, it will have to be presumed that opposite party accepted those allegations to be true. It is settled principle of law that admitted facts need not be proved because admission is the best type of evidence.

11.     Learned counsel for the complainant has further vehemently contended that simple fact that no warranty/guaranty deed has been adduced on record will not absolve the opposite party from the responsibility because it is the case of opposite party who stated in written reply that warranty/guaranty certificate was actually not issued by opposite party on account of pretext that the complainant did not want to pay VAT. The allegation regarding non payment of VAT on the part of complainant is nothing but a tissue of lies. As a matter of fact, it was opposite party which was dishonest and wanted to save income tax as well as VAT and has taken a false plea against complainant to escape from the liability.

12.     Learned counsel for the complainant has vehemently contended that the complainant has been able to prove that he is a consumer because the sale of front loader machine by opposite party to complainant is an admitted fact besides that it is also admitted case of the opposite party that

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the front loader was lying presently at their company premises ever since 14.11.2011 because the same was left by complainant alleging the defect in the working thereof. Had there been no defect, manufacturing or otherwise in the machine, there was no occasion for the complainant to leave the machine of the value of Rs.90,000/- at the premises of opposite party after 1½ months of the purchasing. In such a situation, the complainant has been able to prove the allegations made in the complaint. The complainant is entitled to replacement of machine in dispute with a new front loader machine of the same quality without suffering from any defect or in the alternative he is entitled to refund of sale price along with damages as well as litigation expenses to be assessed by this Forum.

13.              We have given thoughtful consideration to rival contentions.

14.              There is no denying the fact that the complainant purchased front loader from opposite party for an amount of Rs.90,000/- on 18.09.2011/30.09.2011. There is further evidence on record that the front loader in dispute was not work worthy and soon after the purchase, it became defective. It has further come on record that the complainant left the front loader in dispute at company premises of opposite party on 14.11.2011 with a request either to remove the defects or to replace the same with new front loader machine of same quality. No doubt the complainant has failed to prove that the front loader machine, in dispute, suffered from any manufacturing defect yet there is no denying the fact that front loader in dispute was defective and was not work worthy. Front

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loader machine became defective within warranty/guaranty period of one year from the date of purchase and the said fact stands proved from the evidence on record. The contention that warranty/guaranty certificate was not issued in favour of the complainant because the complainant purchased the machine for commercial purposes, is not tenable. The complainant happens to be an agriculturist and he purchased the machine for his personal use only. It also fortifies the case of the complainant that machine in dispute was under the warranty/guaranty for a period of one year from the date of purchase.

15.              Since the front loader machine was defective and it was not work worthy, therefore, the complainant is entitled to get the same repaired from opposite party without paying any charges, even if, it is presumed that the complainant has failed to prove that the machine in dispute was suffering from some manufacturing defect because the front loader was admittedly under warranty cover. In this context the reliance can be placed upon Mahindra & Mahindra Ltd. & Anr. Vs Ram Lakan Revision Petition No.1202 of 2014 decided by Hon’ble National Consumer Disputes Redressal Commission, New Delhi (N.C) on 1 May, 2014 wherein  Hon’ble National Commission went on to hold that, “In our observations, the State Commission and District Forum have not held that the tractor suffered from any manufacturing defects. Both the Fora did not take any opinion or did not appoint any approved agency to test the tractor. Therefore, we are of considered view that, the order of fora below to

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replace or of cost of tractor is not sustainable. So far as replacement of tractor is concerned, we clap no importance to these arguments. We place reliance upon following decisions of this commission and the Honble Supreme Court, namely, Maruti Udyog Ltd Vs Susheel Kumar Gabgotra & Anr. I(2006)CPJ 3(SC), Maruti Udyog Limited Vs Hasmukh Lakshmichand & Anr. III(2009)CPJ 229 NC, Classic Automobiles Vs Lila Nand Mishra & Anr I(2010)CPJ 235(NC), SLP Civil Appeal No.19967 of 2013 decided on 12/7/2013 Hiralal Vs MGF Toyota Gurgaon Capital Vehicles Sales Ltd, in the Revision Petition No.4654/2012.

                   We are of the opinion that, the OP is liable for deficiency in service, because the OP has not supplied the tractor to the complainant, after repair which was during warranty period, but OP demanded Rs.20,000/-. Therefore, on the basis of foregoing discussion, we set aside the orders passed by both the fora below and partly allow this revision petition, with the following order:

                    The OP-1 is directed to hand over the tractor with proper repairs completely with a warranty for one year from the date of delivery. As, complainant deserves for proper compensation who has suffered crop loss and mental agony, accordingly, the OP-1 is directed to pay Rs.50,000/- with interest @9% per annum, from 01.06.2011 till payment. OP-1 shall comply this order within 90 days, from the date of receipt of this order,

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otherwise the amount will carry further interest @9% p.a., till its realization.”

                    Applying ratio of judgment supra to the facts of instant case, opposite party is under legal obligation to make the front loader machine in

dispute to be work worthy after effecting necessary repairs, without getting any further amount from the complainant.

16.               From the aforesaid discussion, in our considered opinion the instant complaint deserves to be allowed and opposite party is directed to make necessary repairs to the front loader machine in dispute to make the same work worthy within 30 days on receipt of the copy of this order without claiming any further payment. For mental tension and harassment, which the complainant suffered on account of deficiency on the part of opposite party, he is also entitled for compensation to the tune of Rs.5,000/- (Rupees Five Thousand only). The complaint stands allowed accordingly. Copies of the order be sent to the parties free of cost immediately and thereafter the file be consigned to the record room.

                   (Bhupinder Kaur)          (Vinod Bala)        (S.S. Panesar)

               Member                         Member                   President

Announced in Open Forum.

Dated:16.04.2015.