The Complainant   has filed this complaint against the O.Ps under section 35 of the consumer protection act 2019 and praying for following Order / Relief -

1. Praying for an award for replacement of the brand new Swaraj Tractor model no 744 (XT) in place of defective Swaraj Tractor bearing chassis no. MBNBU53AAMTA19628, Engine No. EZ4001/SDA02924 from the OP No. 1 and 2 payable to the Complainant.
2. An award for brand new motor cycle being the gift offered by the OP No. 1 against purchase of SWARAJ TRACTOR which was not delivered to the Complainant.
3.  An Award for Rs. 1,82,000/- per annum for loss sustained by the Complainant during ongoing harvesting season recoverable from the OP No. 1.
4. An Award of Rs. 2,00,000/- for mental pain, agony sustained by the Complainant in the hands of the OPs for deficiency in service and unfair trade practice.
5. An Award of Rs. 50,000/- towards the cost of litigation.
6. An order of injunction restraining the OP No. 3 to take forceful possession of the defective tractor from the possession of the Complainant during pendency of the case.
7. An award of interest @ 11 % per annum on entire amount awarded by this Commission.

                                  Brief facts of the Complaint

1. The Complainant is a peace loving and law abiding citizen of India/ The OP No. 1 is authorized dealer of SWARAJ TRACTOR, OP No. 2 is proprietor/ manager of Swaraj Tractor, OP No. 3 is financer of the said tractor and the  Tractor was purchased by the Complainant.
2. OP No. 1 published advertisement by stating that any person who will purchase the Swaraj Tractor from their showroom would get an award of ROYAL ENFIELD BULLET motor bike free of cost./ The Complainant decided to purchase a Swaraj Tractor from the OP No. 1.
3. The Complainant visited the show room of the OP on 24.03.2021, he purchased one Swaraj Tractor bearing chassis no. MBNBU53AAMTA19628, Engine No. EZ4001/SDA02924 at an ex show room price of Rs. 9,61,270/- / The tractor was purchased by the Complainant by making payment of Rs. 2,80,500/-

which the OP No. 1 acknowledged by issuing receipt / The tractor was purchased by the Complainant by obtaining financial assistance / loan from the OP 3 which was arranged by the staffs and representatives of OP No. 1.

4. The representatives of OP No. 1 during the time of purchase of the tractor had given the break-up of payment mode to the Complainant as ex-show room price Rs. 9,61,270/-, Cash discount Rs. 50,000/-, Regd. & Insurance 35,000/-, Hood & Guard Rs. 10,000/- , on road price 9,56,270/-, Less Loan amount 6,50,000/-, Margin money 3,06,270/-, Finance expenses Rs. 25,000/-, Down payment 3,31,270/-.
5. Subsequently, the tractor was handed over / delivered to the Complainant but at the time of delivery of the said Swaraj Tractor the OP No. 1 failed / neglected to handover various tools like as jack, wheel range, etc to the Complainant, the OP No. 1 handed over old tiers in place of new ones attached to the trolley of the said brand new tractor.
6. That the brand new Royal Enfield Motorcycle was not given to the Complainant which the OP No. 1 withheld from being delivered to the Complainant on falsely but they did not hand over any paper to that effect.
7. After few days from the date of purchase, the Complainant miserably faced enormous hazards as because the said Swaraj Tractor started to give and display various mechanical as well as manufacturing defects, the Complainant went to the OP No. 1 with the brand new tractor and complained before its stuff /representative regarding its defects suffered by newly purchased vehicle viz. i) the alignment of the engine of the said Swaraj Tractor was found and seen to be crooked, bent and abnormally tilted ii) the tractor emitted enormous  vibrating noise during the time of changing gears. iii) all the four tyres of the tractor were getting abnormally browsed and developed abnormal and rapid wares and tiers due to such manufacturing defects of the tractors.
8. That the Complainant during the visit to the OP No. 1 showroom had to leave his brand new tractor for a prolonged period 10/11 days as per instruction of the representative of OP No. 1 but despite having left his brand new tractor in the show room of the OP No. 1 the tractor was painstakingly left unattended and its defects were not rectified.
9. That due to COVID pandemic situation the Complainant had been forced and compelled by the representative of the OP No. 1 to take back his tractor without any single repair and the Complainant thereafter facing barriers and harassments had to pull back his said tractor and dumped the same at his residence and the said tractor became completely unusable and stop functioning completely. The Complainant made numerous effort and endeavors to make contact with the representative of OP No. 1 praying before them to repair and get his tractor into running condition but most sadly/ unfortunately the entire efforts endeavors and requests were completely turn a deaf ear to by the representative of OP No. 1 and the tractor was left unattended and in a broken down condition.
10. That meanwhile after continuous persuasion from the Complainant, the representative of OP No. 1 visited the residence of the Complainant on 08.04.2021 and after inspection the same  tractor, the staff of the OP No. 1 had jotted down the defects in the tractor as gear sound and hydraulic related problems and in the said process the Complainant had to make payment of Rs. 3500/- to the representative of the OP No. 1 but despite of having payment to the said sum of money the inherent defects in the said Swaraj Tractor never got rectified and continued to remain strained in a broken down condition.
11. That the Complainant thereafter by his letter dated 07.07.2021 requested the OP No. 1 to look into the matter regarding the entire manufacturing inherent defects suffered by the brand new tractor and get the same replaced by another brand new Swaraj Tractor . But the representative of the OP No. 1 did not take any necessary steps or measures to solve the problem which was reported by the Complainant.
12. The Complainant again by its letter dated 13.07.2021 informed the OP No. 3 the entire facts which the Complainant had been facing since the very inception of purchase of the tractor. The Complainant also stated if the defective tractor is not replaced by the OP No. 1 it would quite impossible for the Complainant to liquated the regular dues of the OP No. 3 but the representative of the OP No. 3 thereafter inspected the defective tractor in the house of the Complainant and the representative of the OP No. 3 also accepted that the tractor suffered inherent defect and advised the Complainant to refer the matter before this Commission.
13. That thereafter the Complainant lodged his complaint before the office of the Assistant Director, CA&FBP , Jalpaiguri Regional Office for redressal for grievance on 20.12.2021, the OP No. 1 on receipt of notice appeared before the office and admitted that the brand new Swaraj Tractor had actually suffered inherent manufacturing defects but the matter is not been settled.
14. The Complainant has also stated that if the Complainant would have been able to plough 40 bigha land in a day he would earn Rs. 14,000/- per day and in a year the Complainant could earn a sum of Rs. 11,82,000/- per annum but unfortunately the Complainant despite having purchased the brand new tractor but was not able to get benefits from his tractor due to sole manufacturing defects being suffered by his tractor and the OP No. 1 never sub served the consumable benefits, necessities and requirements of the Complainant.
15. That due negligent and service deficient acts, deeds and things of the OPs for replacement of a brand new Swaraj Tractor and also for handing over the brand new Royal Enfield Motor cycle promised to be gifted by the OP No. 1 and also for the recovery of financial loss to the tune of Rs. 1,82,000/- and cost of litigation to the tune of Rs. 50,000/- and for monetary compensation towards

mental pain and agony to the tune of Rs. 2,00,000/- suffered by the Complainant in the hands of the OPs.

16) That the cause of action of this case arose and started on 24.03.2021 when the Complainant purchased brand new Swaraj Tractor fromthe OP No. 1 , thereafter on 07.07.2021, 13.07.2021 and lastly on 14.01.2022 and the said cause is still continuing.

To prove the case the Complainant filed the following documents by a firisty:

1. Photocopy of Estimate , terms and condition dated 24.03.2021
2. Photocopy of Money receipt dated 24.03.2021
3. Photocopy of Money receipt dated 05.04.2021
4. Photocopy of road challan dated 08.04.2021
5. Photocopy of Money receipt dated 07.05.2021
6. Photocopy of Money receipt dated 02.06.2021, 07.06.2021, 08.06.2021,
7. Photocopy of Communication dated 07.07.2021, 13.07.2021.
8. Photocopy of Complaint to the Asst Director,  CA&FBP Jalpaiguri RO, Dated 20.12.2021
9. Photocopy of order dated 14.01.2022.

Notice was issued from this Commission for servicing the same upon the OPs. On receipt of notice all the OPs have appeared before this Commission through Vokalatnama, filed their W/V, denied all the material allegation of the Complainant. In the W/V the OPs have stated that the Complainant has no cause of action to file the case and the case is not maintainable in facts or law / this Commission does not have any jurisdiction to entertain the instant case / there is no sufficient ground to draw up a proceeding against the OPs / the Complainant had not come with clean hands and the Complainant by surpassing the actual fact filed this case which is defective due to non joiner and mis-joinder of necessary parties/ that the complaint is barred by jurisdiction because neither the OPs actually and voluntarily recites or carried on business or has a branch office, or personally works for gain within the jurisdiction of this Commission / the Complainant is not a consumer within the meaning of Consumer Protection Act 2019,/ the Complainant purchased the vehicle for commercial purpose and for which the Commission has no jurisdiction to adjudicate this case so the complaint filed by the Complainant is liable to be rejected / the Complainant has suppressed the actual facts / Complainant does not come within the definitionof a consumer and the OPs have also stated that,the statements made in different paragraph are not true and the Complainant approached the OP No. 3 to seek financial assistance in order to purchase a Swaraj Tractor 744 vide registration no. WB853539 on hypothecation and after verifying the credentials a loan of Rs. 6,50,000/- along with finance charges of Rs. 2,95,425/- totaling of Rs. 9,45,425/- was sanctioned vide loan agreement no. 7163661, pursuant to which loan agreement was executed on 04.06.2021 and as per that agreement the Complainant was supposed to pay a total tenure of 60 no. of monthly installments with EMI amount of Rs. 16,500/- per month. The OP No. 3 in its W/V has also stated that on 04.07.2022 the Complainant paid a sum of Rs. 4,925 /- and amount of Rs. 9,79,838/- was standing on the part of the Complainant including additional interest Rs. 36,518/-, cheque bouncing charges of Rs. 3,180/- and future dues of Rs. 7,42,500/- / the OP No. 3 also stated that the Paragraph No. 2 of the complaint is not known to the OP No. 3, paragraph no 3 are matter of record, paragraph no. 4 is partly false and fabricated as the OP No3 has financed a loan of Rs. 6,50,000/- along with finance charges of Rs. 2,95,425/- and total agreement value of Rs. 9,45,425/- which was sanctioned but the Complainant with an intention to misguide the Commission has mentioned the finance charges was of Rs. 25,000/- / OP No. 3 also stated that paragraph no 5 is matter of record and paragraph no. 6 don’t have any nexus to the OP No. 3 , paragraph no. 7,8,9 are not related to OP No. 3/ OP No. 3 also stated in W/V that the Paragraph No. 10 is also not known to the OP No. 3 , Paragraph No. 11,12 are matter of record/ it is further stated that paragraph 13 is mere assumptions of the Complainant, Paragraph No. 14 don’t have any nexus with the OP No. 3 . The OP No. 3 has further stated that no cause of action had ever arisen against the OP No. 3 and the Complainant is not entitled to get any relief as prayed for as there was no deficiency in service on the part of the OP No. 3. The OP No. 3 has further stated that, the Complainant has on some false allegation filed this case and if the Complainant failed to repay the finance amount, the OP No. 3 is duty bound to repossess the vehicle as per law and sale the same for recovery of money as the said sum of money is public money and cannot mis-utilized by the Complainant. By filing the written version the OP No. 3 praying for dismissal of this case.

On receipt of notice the OP No. 1 &2 appears before this Commission through Vokalatnama, filed W/V, denied all the allegations of the Complainant and has stated that, the complaint is not maintainable neither in facts nor under law/ there is no cause of action for filing of this case/ there was no deficiency in service on the part of the OP No. 1 & 2 and in the written complaint, the Complainant did not disclose any manufacturing defects in the tractor which was purchased by the Complainant and the defects which has been stated in the Complaint are nothing but a maneuver without success as the tractor in question had/ has any defects nor the OP No. 1 had/ have any deficiency for rendering any services to the Complainant and thereby the complaint is liable to be dismissed. The OP No. 1 has also stated that the disputes as alleged by the Complainant are absolutely false having no legs to stand upon and the Complainant by taking the advantage of benevolent legislations, suppressing the material facts filed the instant case against the OP No. 1 for his wrongful gain and causing wrongful loss to the OP No. 1/ the complaint is speculative, vexatious and malafide and as per the provision of Consumer Protection act/ deficiency in service is prime element and without deficiency of service against either of the OPs the jurisdiction of this Commission would not be attracted and thereby the complaint is liable to be dismissed/ the OP No. 1 has further stated the Complainant has not annexed report of any independent expert or any other documents to substantiate the alleged manufacturing defects in the tractor and / or deficiency in service on the part of OP No. 1, thus with regard to allegation in the manufacturing defects in the tractor as well as deficiency in service on the part of OP No. 1, the complainantis put to strict proof of the same by producing evidence as required, mere statement is not enough to prove the defect/ it is also stated by the OP No.1 that the complainant had filed the instant case to take undue advantage to cover up his own latches evading the payment of installment to the OP No. 1 and as such he is not entitled to get any relief as prayed for./ it is also stated that the tractor manufactured by the OP No. 2 are delivered only after completing the process of pre delivery inspectionto the entire satisfaction of the customer in respect of the tractor which has been done in the instant case/ it is also stated that the OP No. 1 maintains its business relationship with the customer being unauthorized dealer of the OP No. 2 on a principal to principal basis, rendering services to the satisfaction of the customers and the OP No. 1 cannot be held liable for any manufacturing defects if any on the part of the OP No. 2 and the OP No. 1 categorically denied that the tractor was/is infested with inherent manufacturing defect and still the tractor is road worthy which thecomplainant is using and earning money and purposely filed this case to avoid his liability to avoid the payment of installments to the OP No. 1 as agreed upon. / it is also stated that, all the primary tools relating to the tractor as provided by the manufacturer were handed over to the complainant with the tractor and assertions inconsistent thereof are all false and meaningless and denied by the OP No. 1, so far the statement related to the old tyre is concerned attached to trolley is equally found to be a myth in view of the fact that if the tyre attach to the trolley was supplied to the complainant by the OP No. 1 obviously this would have been raised earlier not at such belated stage which would manifestly suggest that the said statement was made with evil design and motive and denied by the OP No. 1 and it is also stated that as to the offer related to the Royal Enfield is concerned it was an advertisement cum lottery which was based uponcertain terms and condition and one of the most important condition was that the wining purchaser of the tractor shall have to pay installments related to the tractor as on the date which the complainant has failed to comply which was a mandatory condition and thus the wining reward has been withheld and it is also mentioned that as the complainant after purchasing the tractor on installment has failed to pay amount for the purpose of registration and to bring the tractor to the showroom of the OP No. 1 which is sine-qua-non for registration of the tractor, registration could not be completed and thus the OP No. 1 had/has no manner of negligence in any way or at all and are denied/ the OP No. 1 in his W/V has also stated that paragraph no. 7 of the complaint is wrong and the OP No. 1 visited the house of the complainant for first servicing the tractor at his house on his request on 08.04.2021 after the tractor had run already for 50 hours when the complainant did not raise any issues nor made any complaint infested with the tractor at the time of first service and at the time of first servicing when the technicians of OP No. 1 went to the house of the complainant on his request for rendering first free service to the tractor, the complainant misbehaved with the technician very roughly and forced him to put his signature on the bill issued by the OP No. 1 which bill was subsequently misused by the complainant / it is further stated that the complainant brought the tractor to the showroom of the OP No. 1 for 2^nd servicing on 24.05.2021 at 191 hours and made complaint tractor bend instead of actual issues such as rear tyre pressure and front tyre pressure and same was thoroughly checked and diagnosed the tractor up to satisfaction of the complainant though the complainant did not complain any problem like alignment of engine is crooked, bent and abnormally tilted and the tractor made noise / sound during the time of changing gears as alleged in Paragraph No. 7 and the complainant was present at the time of both the services and signed the job cards after being fully satisfied with the performance of the tractor and the alleged defects of the tyre of the tractor were getting bruised and developed abnormal wear and tears due to manufacturing defects as alleged though the complainant has not submitted any expert report for such allegation and that’s why the complainant has no cause of action against the OP No. 1/ the OP No. 1 has also stated that at the time of second visit the complainant was started telling that the tractor was not in order when the OP No. 1 finding no other alternative asked the complainant to keep the tractor with them for examining the tractor by an expert technician of OP No. 2 and the expert attended examine the tractor but could not discover any defect infested with the tractor and on being pressurized by the complainant the OP No. 1 had to keep the tractor in the showroom for few days and any assertion in contrary thereof are false and frivolous and denied by the OP No. 1/ the complainant never disclose any such complaint earlier nor the same was reflected in the job-cards and that’s why the statement which was made by the complainant be treated as imaginary, ill founded, motivated statements, made in the paragraph no. 8 of the complaint which is false as well as contradictory and denied by the OP No. 1. / the OP 1 has also stated that within a month after 1^st servicing was done by the OP No. 1 at the house of the complainant when the complainant did not make any complaint involving the tractor and job card dated 08.04.2021 don’t support the contention made in paragraph no. 8 and within a period of two months the tractor had already run 191 hours that too during lockdown period due to COVID 19 restrictions and therefore the story of keeping the tractor in a broken condition is not true as well as unbelievable and denied by the OP No. 1/ it is further case of OP no. 1 that as per promise and assurances made by the complainant relating to payment of last installment of the tractor which was assured to be paid by the complainant in the month of July 2021, accordingly on 07.07.2021 the OP No. 1 in the afternoon had sent its two sales representatives for collecting installments from the house of the complainant and when they went to the house to collect installment the complainant instead of paying installment to them confined them for hours and started putting pressure upon them to sign on a written paper which they initially denied to sign as theybeing the sales representative did not have any idea about any defects infested with the tractor since they are purely non technical persons but after several/ continuous threats by the complainant the representatives to avoid harassment, humiliation ultimately was compelled to put their signature on the said written paper and then after four hours of such confinement they were releasedand that fact was duly brought to the notice of IC kotwali PS vide complaint dated 08.07.2021. Regarding Para No. 12 of the complaint the OP no. 1 has stated that receiving a letter dated 29.12.2021 issued by the Office of Assistant Director, CA & FBP, Jalpaiguri Regional Office they came to know that the complainant has lodged a ill founded complaint for which the OP No. 1 was asked to attend the office of the Assistant Director on 14.01.2022 at 2 PM and pursuant to such direction the OP No. 1 attended the office, disclosed the true state of affairs involving the tractor purchased by the complainant and after long discussion, the OP No. 1 requested the complainant to bring the tractor at their showroom and assured the complainant to resolve the defects if any infested with the tractor and would also examine the same by expert technician of OP No. 2 when the complainant refused to bring the tractor with an excuse that the tractor is not in running condition and due to which the OP No. 1 offered the complainant tow the tractor to their showroom at the cost and expenses of the OP no. 1 which offer being made by the OP No. 1 in presence of the Assistant Director but the complainant denied the same. By filing the written version the OP No. 1 has denied that the complainant had lost a sum of Rs. 11,82,000/- per annum due to non using of the tractor and it is altogether wrong that the complainant could not use the tractor due to manufacturing defects, had the tractor being infested with manufacturing defects, the tractor could not run 191 hours within a period of two (02) months from the date of purchase that too during COVID 19 pandemic situation. / the OP No. 1 has further stated that to get rid of his financial difficulties the complainant has filed this case on false allegations and the complainant is not entitled to get any compensation of Rs. 4,32,000/- on account of financial losses, mental pain and agony. The further case of the OP No. 1 is that the OP No. 1 has sent several letters dated 19.01.2022,10.02.2022, 18.02.2022 through post to the proper address of the complainant requesting him to complete the free servicing within the prescribed time but went in vein. By filing the W/V, the OP No. 1 & 2 praying for dismissal of the case.

In support of the W/V the OP No. 1 files the following documents:

1. Advertisement offer (Annexure I)
2. Job Card dated 08.04.2021 showing 50 hours uninterrupted running of tractor (Annexure II)
3.  Job Card dated 24.05.2021 showing 191 hours uninterrupted running of tractor (Annexure III)
4. Copy of mode of installment dated 24.03.2021 (Annexure IV)
5. Information lodged to the IC Kotwali dated 08.07.2021 along with two letter dated 07.07.2021 (Annexure V)
6. Copies of letter issued to the complainant dated 19.01.2022, 10.02.2022, 18.02.2022 collectively (Annexure VI)
7. Letter issued by the office of the Assistant Director CA FBP, Jalpaiguri Regional Office dated 29.12.2021 along with the copy of redressal proceedings collectively (Annexure VII).

8. Alleged letter of complaint dated 07.07.2021 (Annexure VIII)
9. Carbon copy and final copy of the bill dated 08.04.2021     (Annexure IX).

Having heard the Ld. Advocate of both the sides and on perusal of the Complaint, Written Version as well as documents filed by the parties, the following points are to be decided by this Commission.                              

Points for consideration                  

1. Whether the Complainant   is a consumer?
2. Whether the case is maintainable under the C.P. Act 2019?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Is the Complainant   entitled to get any award and relief as prayed for as per the prayer of his Complaint?

                         Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case. The complainant has filed examination in chief in the form of an affidavit wherein he has specifically corroborated the contents of the complaint and stated that he visited the showroom of the OP No. 1 on 24.03.2021 and subsequently purchased the Swaraj Tractor at an ex-showroom price of Rs. 9,61,270/- after making a down payment of Rs. 2,80,500/- which the OP No. 1 acknowledged by issuing receipt and the complainant has also corroborated that the said tractor had purchased by him by obtaining loan from the OP No. 3 which was arranged by the staffs of the OP no. 1 and all necessary paper as well as documents regarding the finance was managed by them and the same had been signed /executed by the complainant at the show room of the OP No. 1 in presence of his representatives as well as in presence of representatives of the OP No. 3 . the complainant has also corroborated that at the time of purchase of the said tractor the OP No. 1 had given the breakup of  the payment and he also stated that the tractor was delivered to him and in Para No. 7 of his deposition he stated that after passage of just a few days time interval he had miserably face enormous hazards as because the brand new Swaraj Tractor started to give and display various mechanical as well as manufacturing effects, immediately without any delay he rushed into OP No. 1 showroom with the brand new tractor and complained before the staffs and representatives about the defects suffered by him in the newly purchased tractor namely:

1. Alignment of engine of the Swaraj Tractor was found and seemed to be crooked, bent and abnormally tilted.
2. The tractor emitted enormous vibrating noise/ sound during the time of changing gears.
3. All the four tyres of the tractors were getting abnormally browsed and developed abnormal and rapid wares and tears due to such manufacturing defects of the tractor.

The complainant has also corroborated the contents of the complaint which stated that during the visit to the OP No 1 showroom he had to leave his tractor for a prolonged period of 10/11 days as per the instruction of the representative of OP No. 1 but despite having left his tractor in the showroom the said tractor was painstakingly left unattended and its defects were not rectified and it is also stated that on continuous persuasion with the OP No. 1 of the representative visited his resident on 08.04.2021 and after inspection of the tractor he jotted down the defects of the tractor as gear sound, hydraulic related problems, and he had to make payment of Rs. 3,500/- to the staff of the OP No. 1but despite having made payment of the said sum of money the inherent defects in the tractor never got rectified and for which on 07.07.2021 he wrote a letter to the OP No. 1, requested him to look into the matter

regarding the entire manufacturing inherent defects suffered by the brand new tractor and get the same replaced by another brand new Swaraj Tractor but the representative of the OP No. 1 did not take any necessary measures to solve the problem. In the deposition the complainant has also stated that on 13.07.2021 he wrote another letter addressed to the OP No. 3 informed the entire fact which he had been facing since the inception of purchasing the tractor and also stated that the defective tractor if not replaced by the OP No. 1 it would be quite next to impossible for him to liquidated the regular dues of the OP No. 3 and the representatives of OP 3 thereafter inspected the tractor and also accept that the tractor suffered the inherent defects and advised him to refer before this Commission and thereafter the complainant lodged a written complaint before the Assistant Director, CA & FBP, Jalpaiguri Regional Office but of no result. The complainant in his evidence has stated how he sustained monetary loss due to not using the tractor. By filing the written deposition the complainant had stated that he has been able to prove this case against the OPs and he is entitled to get the relief as prayed for.

The OP No. 1 MAA KALI MOTORS has adduced written deposition in the form of an affidavit sworn by Sri Dulal Das who happens to be the Authorized representative of OP No. 1 who in his written deposition corroborated the contents of their written version and stated that there is no cause of action at all arose for filing the instant case against them tough there was no deficiency in service as alleged by the complainant. The witness Dulal Das has also stated that the materials on record don’t disclose any manufacturing defects in the tractor which has been alleged by the complainant in his written complaint and the complainant has filed this case on some false allegation, suppressing the material fact with malafide object to forestall installment required to be paid time to time by him. The witness of the OP No. 1 in his evidence has also stated on oath that the complainant has not annexed report of any independent expert or any other documents to substantiate the alleged manufacturing defects in the tractor or deficiency in service on the part of the OPs though it was the duty of the complainant to prove the said alleged manufacturing defects by giving reliable material evidence as required and mere statement is not enough to prove manufacturing defects as upheld by the Hon’ble NCDRC in the matter of CLASSIC AUTOMOBILES VS LILA NAND MISHRA I (2010) CPJ 235 NC. The witness of the OP No. 1 has also stated that the complainant has filed the instant case to take undue advantage to cover up his own latches or lapses evading the payment of installment to them and as such the complainant is not entitled to get any relief from this Commission as the complainant has not approached this Commission with clean hands. In this regard the witness of the OP No. 1 referred another decision of M/S SHAKUM OVERSEES LTD. VS NATIONAL INSURANCE CO. LTD (1993) I CPJ 86 NC. The witness of the OP No. 1 has further stated that, the tractor manufactured by the OP No. 2 are delivered only after completing the process of pre-delivery inspection to the entire satisfaction of the consumer in respect of the tractor and the same had been done in the instant case also and it is also stated that the complainant is using the tractor and earning money as the tractor is still road worthy and only to avoid the liability of payment of installments the complainant had filed this case. It is further corroborated by the evidence of the OP No. 1 that the representative of the OP No. 1 went to the house of the complainant for 1^st servicing on 08.04.2021 after the tractor had already run for 50 hours when the complainant did not raise any issues nor made any complaint infested with the tractor at the time of 1^st service but when the technicians had been to the house of the complainant on his request for 1^st free service, the complainant misbehaved with the technicians very roughly and forced them to put signature on a document and the complainant brought the tractor to the show room of the OP No. 1 for 2^nd servicing on 24.05.2021 after completion of 191 hours of running and made complaint tractor bent instead  of actual issues such as rear tyre pressure, front tyre pressure and the same was thoroughly checked and diagnosed by the technicians and the tractor was delivered to the satisfaction of the complainant who did not inform any problem like alignment of engine is crooked, bent, and abnormally tilted and that the tractor made noise / sound during the time of changing gears and the complainant was present at the time of both services and signed the job card after being fully satisfied with theperformance of the said tractor and though the complainant is claiming the manufacturing defect of the tractor but has not submitted any expert report . The witness of the OP No. 1 has further deposed that as per promise as well as assurances being made by the complainant relating to the payment of the installment of the tractor which was assured to be paid by the complainant in the month of July 2021, they on 07.07.2021 in the afternoon had sent two sales representatives for collecting installment from the house of the complainant but the complainant instead of paying installment to them confined them for hours and started putting pressure upon them to sign on a paper when they were compelled to put their signature finding no other alternative and that matter was duly brought to the notice of IC Kotwali PS vide complaint dated 08.07.2021. The witness of the OP No. 1 has further deposed that on 14.01.2022 at 2 PM they went to the office of Assistant Director, CA & FBP, Jalpaiguri Regional Office and after long discussion they requested the complainant to bring the tractor at their showroom and assured to resolve the defects if any infested with the tractor and would also examine the same by an expert technician of OP No. 2 when the complainant refused to bring the tractor with an excuse that the tractor is not in a running condition and due to which they offered the complainant to tow and bring the tractor to their showroom at their own cost and expenses which was made in presence of Assistant Director and the said offer was turned down by the complainant which clearly indicates that the tractor was still road worthy, having no manner of defects much less inherent defects and the complainant has filed this case with malafide intention.

That by filing the written evidence, the witness of the OP No. 1 praying for dismissal of this case.

To falsify the case of the complainant the OP No. 2 has also adduced one witness namely Amit Kumar Raghav who on oath has specifically corroborated the contents of their written version. In the written deposition filed in the form ofan affidavit Amit Kumar Raghav has stated that the complainant had filed this case on some false allegation to avoid the payment of installment to the OP No. 1 and with intend to cover up his own latches without filing any documentary evidence/ report of any expert to substantiate his claim regarding manufacturing defects. In the written deposition the OP No. 2 denied all the material allegation of the complainant and by filing written evidence the OP no. 2 praying for dismissal of this case.

Ld. advocate of the complainant filed written notes of argument and has stated that the complainant has been able to prove his case against the OPs through the evidence as well as by producing several documents in support of his case. Ld advocate of the complainant has stated in its Brief Notes of Argument that the complainant has filed evidence and proves the quotation/ estimate or the terms and conditions regarding payment as well as acknowledgement by the OP No. 1 and from the Annexure II, the complainant has been able to prove that, the OP No. 1 received a sum of money from the Complainant and thereafter delivered the Swaraj Tractor. In the written argument the complainant has further argued that, on several occasions they agitated before the OPs regarding the defect of the tractor in question and he prayed to the OP No. 1 to replace the defective tractor by giving a new tractor to the complainant but of no result and that’s why he was compelled to file a complaint against the OP No. 1 in the office of the Assistant Director, CA&FBP, Jalpaiguri, Regional office for redressal but of no result. Ld. Advocate of the complainant further argued that, the complainant has been able to prove his case against the OPs to the effect that there was deficiency in service on the part of the OPs and he is entitled to get the relief as prayed for.  

Ld. Advocate of the OP No. 1 & 2 files Brief Notes of Argument and have stated that, the complainant has failed to prove its case against them by producing valid evidence either in the form of written deposition or through the documentary evidence. They have further argued that, the complainant has filed this case on some false allegations with an intention to gain unlawfully and the complaint is not sustainable in law vide decision of Classic Automobiles VS Lila Nand Mishra I (2010) CPJ 235 NC. It is further argument of the OPs that there is no cause of action for filing of this case against the OPs who had no manner of deficiency in service required to be rendered to the complainant in respect of the tractor.  It is further argument of the OPs that the contents of the complaint petition are absolutely false having no legs to stand upon and for wrongful gain he filed the case for causing wrongful loss to the OPs to avoid the payment of installment due and payable by the complainant to the OP No. 1.  The further argument of the OPs that the complainant has failed to prove the alleged deficiency in service and the complainant has not approached before this Commission with clean hands and vide decision of M/S Shakum Overseas Ltd. VS National Insurance Co. Ltd. (1993) I CPJ 86 NC the complaint is liable to be dismissed. The further argument of the OPs that the tractor was manufactured by the OP No. 2 which was delivered to the complainant after completing the process of pre delivery inspection to the entire satisfaction of the customer in respect of the tractor which was done in the instant case also. The further argument of the OPs that, in the deposition of the complainant made in Para No. 6 are false and for the purpose of this case the complainant has stated the same and the OP No. 1 submits that all the tools relating to the  tractor as provided by the manufacturer were handed over to the complainant with the tractor and so far as the statement related to the old tyre is concerned attached to the trolley is false one. Regarding the supply of Royal Enfield the OP No. 1 submits that it was an advertisement cum lottery which based on certain terms and  conditions and one of the most important condition was that the wining purchaser of the tractor shall have to pay the installments related to the tractor as on the date which the complainant has failed to comply with the mandatory condition and the complainant after purchasing the tractor on installment has failed to pay the amount for the purpose of registration and to bring the tractor to the showroom of the OP No. 1 and thus the registration could not be completed. It is further argument of the OPs that for the first time they visited the home of the complainant on 08.04.2021 for first servicing at his house on request of the complainant when the tractor had run for 50 hours within a period of one month from the date of purchase and had the tractor been infested with the defects as stated by the complainant the tractor could not be ply 50 hours within a period of one month during the period of lockdown and the complainant after completion of first service of the tractor, did not raise any issue nor made any complaint infested with the tractor. The further argument of the OP No. 1 is that at the time of first servicing of the tractor the complainant behaved with the technician very roughly and forced them to put signature on the bill issued by the OP No. 1 which bill was subsequently misused by the complainant. The further argument of the OP No 1 that for second servicing on 24.05.2021 when the tractor had already been used and run for 191 hours within a period of 60 days the complainant made a complaint that the tractor bend instead of actual issues which was thoroughly checked and diagnosed the tractor up to satisfaction of the complainant and at the time of 2^nd servicing the complainant was present and he signed the job-cards after being fully satisfied with the performance of the said tractor. The  further argument is that, the complainant has not submitted any expert report to substantiate his claim and mere statements cannot be considered a cause of action against the OP No. 1 and from the job-card which are marked as Annexure – I, II, III clearly suggest that the tractor was/is completely in order having no defects and the complainant has deliberately failed and neglected to pay the installments as per terms and condition of the payment schedule despite repeated request being made by the OP No. 1 though he was using/ enjoying the fruits of the tractor and on 07.07.2021 the OP No. 1 sent its two sales representatives for collecting installments from the house of the complainant but the complainant instead of making payment of installment to them confined the representatives for hours and putting pressure upon them to sign a written paper and they were compelled to put that signature for which the OP No. 1 lodged a complaint with the IC Kotwali PS vide complaint dated 08.07.2021. The further argument is that, the complainant has miserably failed to prove the manufacturing defect in the tractor and instead of manufacturing defects no replacement could be done by this Commission and the complainant had failed to prove the case by cogent reliable documents that the vehicle has being infested with manufacturing defects nor supplied any independent expert report before this Commission and that’s why the plea of manufacturing defects in the vehicle should not be taken into consideration.

In support of the case Ld. Advocate of the O.P. No. 1& 2 referred decisions of Maruti Udyog Ltd. Vs. Hashmukh Lakshmichand of NCDRC(Revision petition no. 827/2004), Sukhvinder singh vs. Classic Automobiles & Anr of NCDRC(Revision petition no. 3973/2012),Jay Prakash Sahu vs. Tata Motors of SCDRC Appeal no. F.A. 13/661 ,Md. Hassan Khalid Haider vs. General Motors India Pvt. Ltd. of NCDRC dated 08 June,2018 ,Classic Automobiles vs. LilaNand Mishra & Anr ref. I(2010)CPJ235(NC) and Sushila Automobiles pvt. Ltd. vs. Dr. Birendra Narain Prasad and Ors of NCDRC Revision petition no. 1652 of 2006.

By filing the Brief Notes of Argument the OPs have prayed for dismissal of this Complaint.

Having heard the Ld. Advocate of both the sides and on perusal of entire record it is admitted fact that the tractor was purchased from the showroom of the OP No. 1 which was manufactured by the OP No. 2. It is also admitted fact that on 08.04.2021, 1^st servicing of the tractor was done when the technician of the OP No. 1 went to the house of the complainant and during that time the complainant put his signature on the job-card. From the said job-card dated 08.04.2021 the complainant on its satisfaction put his signature made no complaint regarding manufacturing defects or any other defect and during the 1^st servicing within a period of 14 days from the date of purchase the tractor had already run for 50 hours.

From the record it further reveals that, the OPs have filed Annexure III which is nothing but the job-card meant for the 2^nd servicing of the tractor which clearly shown that, within 2 months the tractor had run for 191 hours i.e 3 hours per day during the period of National Lockdown when the movements of the vehicle was restricted.

From the record it further reveals that, on several times the OP no. 1 asked the complainant to bring the tractor at their service center for regular free services but the complainant had deliberately failed and neglected to bring the tractor at the service center for the reasons best known to the complainant.

From the record it further reveals that the complainant has claimed that the tractor in question had some manufacturing defects from the very beginning but in support of his claim he did not file any report of expert before this Commission. On the other hand from the documents which are annexed on the side of OPs it is very much proved that the tractor had run 191 hours within a period of two months from the date of delivery of the Tractor. It is further admitted fact that at the time of 1^st servicing and 2^nd servicing the tractor in  question the complainant made no complaint in the job cards and the complainant on its satisfaction put his signature on two job-cards which clearly presumes that the said Tractor had no manufacturing defects as alleged at the later stage by the Complainant .

Moreover from the documents of the OP’s it is proved that the OPs had sent letters dated 19/01/2022, 10/02/2022 & 18/02/2022 to the Complainant requesting him to complete the free servicing of the Tractor within the prescribed time but the Complainant did not produce the Tractor in the Service Centre and that non production of Tractor in the Service Centre for Free Servicing is also presumed that the Tractor have/had no defect at all.    

The complainant in his written complaint as well as in his deposition has stated that after purchase of the said tractor the same was left in the residence of the complainant in broken down condition and that statement is very much contradictory with his own job card dated 24.05.2021 wherefrom it reveals that the tractor has already run 191 hours within a period of two months from the date of purchase.  It is very much hard to swallow the allegation of the complainant regarding the broken down of the tractor which had already run 191 hours within a period of two months and 191 hours run within a period of two months itself was a testimony that the tractor  had no manufacturing defects and had there been any manufacturing defects it obviously leading to any starting problem and  that it would have manifested at a very initial stage.

In the instant case the complainant praying for necessary direction against the O.P.s for replacement of the tractor by a new one but the complainant has failed to prove the fact of alleged defect by cogent, credible and adequate evidence supported by any expert evidence that the tractor suffered from manufacturing defects. In the case in hand the opinion of an expert is not forthcoming from the side of the complainant to prove the defect alleged. In the case in hand the complainant has not been able to discharge the  onus to prove the manufacturing defect of the tractor in question and he neither produced any expert opinion nor he proved the same from the job card that the tractor was suffered from the manufacturing defects.

It is needless to mention here that when anyone alleged manufacturing defect of any vehicle the onus of proof has to be on the person who alleges that defect and in the case in hand the complainant has failed to prove the same.

Considering all we are of the view that the complainant has not been able to prove the case against the OPs by producing valid evidence and that’s why he is not entitled to get any relief as prayed for.

Hence, it is therefore,

                                                                        ORDERED

That the instant Consumer Case being is No 13/2022 is herby dismissed on contest but without any cost.                

 Let s copy of this order be given to the parties free of cost.