Karnataka

Chitradurga

CC/33/2016

N.Manjappa S/o Late Neelappa - Complainant(s)

Versus

Mahanthesh Agadi,Owner and Manager of Agadi Belldh Motors - Opp.Party(s)

Shri.G.K.Mallikarjun

22 Mar 2019

ORDER

COMPLAINT FILED ON:02/05/2016

DISPOSED      ON:22/03/2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

CC.NO.33/2016

 

DATED: 22^nd MARCH 2019

PRESENT :-     SRI.T.N.SREENIVASAIAH :   PRESIDENT                                     B.A., LL.B.,

                        SMT. JYOTHI RADHESH JEMBAGI

BSc.,MBA., DHA.,                LADY MEMBER

 

……COMPLAINANT/S	N. Manjappa, S/o Late Neelappa, Age: 48 Years, Agriculturist and owner of Tractor bearing Reg.No.KA-17 NT 006360/2014-15, Kakkeharavu village, Chitradurga Taluk and District.   (Rep by Sri.G.K. Mallikarjunswamy, Advocate)
V/S
…..OPPOSITE PARTIES	1. Mahantesh Agadi, Manager and Proprietor, Agadi Bellad Motors, (Bellad Farm Services), K.Plot No.1, Karur Industrial Area, Andanur Complex, P.B. road, Davanagere.   2. The Branch Manager, Agadi Bellad Motors Service, Opp: Jagalur Mahalingappa Complex, Near SMST Travel, P.B. Road, Chitradurga.   3. The Branch Manager, L & T Insurance and Finance Co. Ltd., Davanagere Branch, Davanagere.   4. The Divisonal Manager, HMY Show room, ST Building, Near Sports Complex, II Floor, Jalahalli Cross, Bangalore-13.   5. The Manager, Manufacturer of HMT Tractor Ltd., HMT Tractor bearing Serial No.23419, Engine No.68419, Chassis No.E-2785, Pinjore, Hariyana.   (Rep by Sri.K.E. Mallikarjuna, Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P. Act, 1986 for the relief to direct the OPs to pay Rs.10,00,000/- towards compensation, Rs.25,000/- towards mental agony, Rs.25,000/- towards repairs, Rs.25,000/- towards agricultural expenses, to direct the OP No.1 to refund Rs.2,88,971/- with interest @ 18% p.a from 21.10.2014 with costs and such other reliefs.

2.      The brief facts of the case of the above complainant are that, he is an agriculturist by profession having agricultural lands at Doddapura Village bearing sy.No.26 measuring 4-Acres 30-Guntas, the same is irrigated land.  Accordingly, her wife had a land bearing sy.No.26/5 measuring 5-Acres 26-Guntas of the same village.  In the said land, complainant has grown 3500 Areca trees, they are of 8 years old.  Such being the case, he approached OP No.1 for purchasing a Tractor for his agricultural use.  As per the directions of OP No.1, OP No.2 has sold the Tractor bearing Registration No.KA-17/NT 006360/2014-15, Engine No.68419 and Chassis No.E 278/52014 of Model HMT for a market value of Rs.6,17,161/- and delivered the said Tractor to the complainant on the same day.  Out of the said amount, the complainant has obtained a loan from OP No.3 for a sum of Rs.3,28,190/- and the remaining amount of Rs.2,88,971/- has been paid by the complainant by way of cash on 21.10.2014.  The loan installment period is of three years and an amount of Rs.71,639/- is to be paid by the complainant for every six months as per the loan agreement No.oKJ740300R1500973653 dated 15.06.2015.  The OP No.1 has received 5 blank cheques of Pragati Grameena Bank, Godabanahal Branch, Chitradurga and 6 blank cheques of Indian Bank, Chitradurga and the RTC extracts of her wife as a security purpose.  Further it is submitted that, the OP No.3 has obtained 4 blank cheques of Indian Bank, Chitradurga from the complainant, PAN Card, ID Card and RTC extracts.  Immediately on the next day, the complainant started his work by using the above said Tractor.  By that time, there was a leakage of oil in the engine and the hydraulic pump was not working, the steering of the Tractor was broken and the clutch plate was broken.  The complainant has welded the steering and clutch plate, but the same were broken once again, the radiator was broken, so also electrical wiring.  The OP No.1 with an intention to defraud the complainant has sold the second hand Tractor to him.  It is further submitted that, at the time of delivery of the tractor, the tractor was already run by 100 hours.  Thereafter on 08.03.2016 the complainant took his Tractor for repair with OP No.1 by incurring an amount of Rs.5,677/- and Rs.3,000/- towards towing charges.  Again on 16.03.2016 the complainant got repaired the said Tractor from S.V. Auto Parts, Chitradurga and paid a sum of Rs.2,528/- towards charges and again the said Tractor repaired at R.K. Auto Engineering Works and paid a sum of Rs.1,800/-.  The said vehicle is not fit for agricultural usage.  Thereafter, the complainant approached OP No.1 and requested to replace the Tractor.  In the month of December 2014, the aforesaid Tractor returned to OP No.1, by that time, the OP No.1 shown some different vehicle, since the said Tractors were also old one, the complainant refused to take the same.  OP No.1 at any point of time, assured the complainant for replacement of the vehicle.  Due to supply of defective Tractor, the complainant has suffered mentally, financially and physically, the complainant has suffered a loss to the tune of Rs.10,00,000/-.  The complainant has issued legal notice to the OPs on 02.04.2016, the same were returned with a shara as rejected.  After issuance of the notice, the complainant has repaired his Tractor with S.V. Auto Parts, Chitradurga by spending an amount of Rs.6,710/- on 29.04.2016.  Thereafter, the OP No.3 has sent a notice through his counsel demanding to pay Rs.80,741/-, if fails to pay the same, they will seize the tractor.  The OP No.1,2 and 4 have colluded with each other and supplied the old defective repainted/ tractor to the complainant with an intention to harass and to cause financial loss to him, which is a deficiency of service and unfair trade practice on the part of OP No.1 and 2.  The cause of action arose for this complaint is on 21.10.2014, when the tractor was handed over to OP No.2 and on 04.02.2015 when the complainant has given request letter to OP No.1 and on 02.04.2016, when the legal notice was issued to the OPs, which is within the jurisdiction of this Forum and prayed for allow the complaint.

 3.     On service of notice, OPs appeared through Sri. K.E. Mallikarjuna, Advocate and filed their respective version denying the allegations made in the complaint.

According to the version filed by OP No.1, 2, 4 and 5, it is known to these OPs that, complainant is an agriculturist by profession having agricultural lands at Doddapura Village bearing sy.No.26 measuring 4-Acres 30-Guntas, the same is irrigated land, her wife had a land bearing sy.No.26/5 measuring 5-Acres 26-Guntas of the same village and also complainant has grown 3500 Areca trees, they are of 8 years old.  Such being the case, he approached OP No.1 for purchasing a Tractor for his agricultural use.  It is true that, OP No.1 has sold the Tractor bearing Registration No.KA-17/NT 006360/2014-15, Engine No.68419 and Chassis No.E 278/52014 of Model HMT for a market value of Rs.6,17,161/- and delivered the said Tractor to the complainant on the same day.  It is false to state that, OP No.1 introduced the OP No.3 and OP No.3 has sanctioned loan of Rs.3,28,190/- and the remaining amount of Rs.2,88,971/- has been paid by the complainant by way of cash on 21.10.2014 and the same is put to strict proof of the same.  It is not within the knowledge of these OPs that, the agreement has been entered into between the complainant that, the complainant is required to pay a installment amount of Rs.71,639/- once in six months towards the loan.   It is false to state that, at the time of delivering the aforesaid Tractor, the OP No.1 has obtained 5 blank cheques of Pragati Grameena Bank, Godabanahal Branch, Chitradurga and 6 blank cheques of Indian Bank, Chitradurga and also obtained two RTC extracts of her wife as a security purpose.  Further it is false to state that, the OP No.3 has obtained 4 blank cheques of Indian Bank, Chitradurga from the complainant, PAN Card, ID Card and RTC extracts and the same is put to strict proof of the same.  It is false to state that, after taking delivery of the said Tractor, the complainant used the same for his agricultural purpose, by that time, it was found that, there was a leakage of engine oil and the hydraulic pump was not proper, the steering of the Tractor was broken and the clutch plate was broken, the same is put to strict proof of the same.  The OP No.1 with an intention to defraud the complainant has sold the second hand Tractor to him, at the time of delivery of the tractor, the tractor was already run by 100 hours are denied as false and the same is put to strict proof of the same.  Thereafter on 08.03.2016 the complainant took his Tractor for repair with OP No.1 by incurring an amount of Rs.5,677/- and Rs.3,000/- towards towing charges are denied as false.  It is false to state that again on 16.03.2016 the complainant got repaired the said Tractor from S.V. Auto Parts, Chitradurga and paid a sum of Rs.2,528/- towards charges and again the said Tractor repaired at R.K. Auto Engineering Works and paid a sum of Rs.1,800/-.  It is false to state that, as the said vehicle is not fit for agricultural usage, the complainant approached OP No.1 and requested to replace the Tractor.  It is put to strict proof of the fact that in the month of December 2014, the aforesaid Tractor returned to OP No.1, by that time, the OP No.1 shown some different vehicle, since the said Tractors were also old one, the complainant refused to take the same.  It is denied that, OP No.1 at any point of time, assured the complainant for replacement of the vehicle.  It is false to state that, due to supply of defective Tractor, the complainant has suffered mentally, financially and physically, the complainant has suffered a loss to the tune of Rs.10,00,000/-.  The allegations made in para 7 to 14 are denied as false and the same is put to strict proof of the same. 

It is submitted that, the manufacturer of the above said Tractor is HMT Tractor Ltd., PINJORE-134101, the said manufacturer is a necessary party, without arraying the manufacturer of the Tractor, the complaint is not maintainable and the same is liable to be dismissed.  The complainant has purchased the said Tractor is for commercial purpose and not for his agricultural use and hence, the complaint is not maintainable, the same is false, frivolous, vexatious and misconceived, groundless and unsustainable either in law or on facts the same is filed with a malafide intention to harass these OPs.  The complainant has no locus-standie to maintain this complaint, this Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint inasmuch as it is not a consumer dispute and therefore, does not fall within the scope of the C.P Act, 1986.  The definitions of complainant, complaint, consumer dispute and service as defined in Section 2(1) of the Act do not cover the claims arising under the present dispute, the complainant is not a consumer.  It is submitted that, on 21.10.2014, the OP No.1 delivered new HMT Tractor manufactured by HMT Ltd., PINJORE bearing Tractor Serial No.23419, Engine No.23419 and Chassis No.E-2785 of the model February 2014.  Subsequently, the manufacturer supplied the said Tractor to Jayalakshmi Distributor, Bangalore on 06.03.2014 and sent the same to Yard of Jayalakshmi Distibutor at Hubli.  From there, OP No.1 taken delivery of the same in the month of September 2014 and the same was sold to the complainant on 21.10.2014.  The complainant has paid Rs.1,000/- on 23.09.2014 towards advance amount, subsequently paid a sum of Rs.14,000/- on 26.09.2014 and again on the same day paid a sum of Rs.95,000/-.  Before handing over the said Tractor to the complainant Pre Delivery Inspection Report has been carried out by the authorized Mechanic on 29.09.2014 and the said Mechanic inspected all major 46 components of the vehicle and issued the delivery report and as per the Pre Delivery Report, the Tractor Hr. Meter Reading was 10 Hours, the same is due to transportation of the same from Hubli to Davanagere.  After satisfaction, the complainant once again paid Rs.20,000/- by way of cash on 30.09.2014 under receipt No.1605.  Subsequently, the complainant has taken loan from L & T Finance for Rs.4,23,503/-.  The L & T Finance has got issued delivery order to OP No.1.  However the OP No.1 has not delivered the Tractor to the complainant since the entire amount of Rs.6,17,161/- has not been paid to the OP No.1.  Thereafter on 21.10.2014, the complainant took delivery of the Tractor with an assurance that, the remaining balance of Rs.73,658/- will be paid in due course since he is facing difficulties to adjust the balance amount.  Towards the same, the complainant has given only cheque bearing No.259415 drawn on Pragati Gramina Bank, Godabanahal, but not five cheques.  Before releasing the loan amount by the L & T Finance, the complainant wrote a letter dated 28.10.2018 to L & T Finance stating that, not to release the loan amount to OP No.1.  In view of the said letter, the Financier not released the loan to OP No.1 and 2 at any point of time.  The said fact was intimated to OP No.1 by the financier.  The OP No.1 deputed Mr. Siddesh, Mechanic and Mr. P. Jacob, Area Service in-charge of HMT Ltd., who visited the place to inspect the Tractor to attend the complaints if any, by that time the Driver of the said Tractor intimated that, there is no mechanical problem nor any other problems and the Tractor is working very well and Mr. Jacob, the Company Area Service in-charge also tested the Tractor and found that, there are no problems in the said Tractor.  The complainant again approached the L & T Finance for the second time with a request to sanction the loan.  The finance company initially denied to sanction the loan and thereafter rescheduled and sanctioned the loan amount to the complainant only of Rs.3,28,190/-, in favour of the OP No.1 in the month of June 2015 i.e., after lapse of seven months.  It is further submitted that, if the Tractor is old and not working well and defective one, there is no need to pay the amount and the said fact itself is more than enough to establish the fact that complaint filed by the complainant is totally false and frivolous.  The complainant initially by way of cash on different dates paid Rs.1,20,000/- and Rs.3,28,190/- paid by the Financier, in all Rs.4,48,190/- has been paid by the complainant and the complainant still liable to pay Rs.1,68,931/- together with interest @ 18% p.a as agreed by the complainant.  When the OP demanded the said balance amount of Rs.1,68,931/-, the complainant again issued one more blank cheque drawn on Pragati Gramina Bank,Godabanahal bearing No.259416 with an assurance that the said balance amount will be cleared together with interest within December 2015.  The OP No.1 repeatedly sent their person by name Mr. Siddesh to complainant’s village for balance payment, the complainant sent back the said person on one or the other reason.  The OP No.1 paid the conveyance charges to said Siddesh on each and every visit.  The complainant agreed to pay the balance amount on 07.03.2016.  Thereafter on the same day the brother of complainant Chandrappa and Driver by name Omkar visited the OP No.1 show room for general checkup and regular maintenance, the same has been carried out.  On that day, the mechanic of the OP completely inspected the Tractor and found that, the said Tractor has no problems and raised a bill for Rs.5,497/- vide Bill No.530 and 531 dated 08.03.2016.  The complainant kept the vehicle in the show room till 11.03.2016 with an anticipation of clearing the entire balance amount and paid only Rs.5,000/- on 11.03.2016 vide receipt No.1712 and the complainant is still due of Rs.497/-.    Again on 11.03.2016 the OP No.1 demanded the balance amount of Rs.1,68,931/- together with interest @ 18% p.a and also intimated to the complainant that, if the balance amount is not paid, the said cheque will be presented to the Bank, even then also the complainant has not paid the balance amount.  It is further submitted that, when the OP again and again approached the complainant for balance amount, the complainant has filed this false and fictitious complaint.  It is further submitted that, as per the service manual, it is required to get first service of his Tractor within one month from the date of sale, the complainant gets the first service on 13.11.2014 at Chitradurga Service Centre and as per the Service Manual, the OP carried out the necessary jobs, the complainant has not paid the service charges of Rs.3,000/- till today.  It is further submitted that, on 24.02.2014 the OP No.1 intimated the complainant through letter that, if the complainant not getting the service properly well within time and also intimated that the warranty will not available if not followed the instructions as per the service manual.  But, the complainant has not approached the OP No.1 for proper service as per service manual.  It is further submitted that, the complainant is still liable to pay Rs.1,68,931/- together with interest @ 18% p.a from the date of sale till this date and the OP is initiating proper legal proceedings against the complainant for recovery of the said amount.  Therefore, it is submitted that there are lot of intricacies involved in the above complaint, all the said issues are not sufficiently possible to decide in summary proceedings before this Forum and hence, this Forum has no jurisdiction to entertain this complaint and prayed for dismissal of the complaint. 

According to the version filed by OP No.3, it is submitted that, the complainant is not a consumer as per the provisions of C.P Act, as the transaction between the complainant and OP No.3 is a borrower and financier relations, the complainant is not comes within the definition of consumer as per Section 2(d) of the C.P Act, 1986 and the present complaint is liable to be dismissed.  The OP No.3 is unnecessary party to the present complaint as there are no allegations regarding either deficiency in service or unfair trade practice on the part of this OP No.3.  As such, this OP No.3 is liable to be stricken out from the present proceedings.  The averments of the complaint revels that, OP No.1, 2 and 4 have played a fraud in delivering the used Tractor to the complainant or there are manufacturing defects in the vehicle delivered to the complainant.  Such being the case, this OP is nothing to do in the issues whatever alleged since it is just a financier to the complainant to purchase the Tractor.  It is an admitted fact that, the complainant approached the OP No.3 and this OP provided financial assistance of Rs.3,28,190/- to purchase the Tractor bearing Model No.HMT 3522, Engine No.68419 and Chassis No.E2785 under the loan agreement bearing No.OKG740300R1500973653 dated 13.06.2015 agreeing to repay the loan in 6 equated half yearly of Rs.71,639/- each commencing from 10.12.2015 to 10.06.2016.  The complainant is a chronic defaulter in repayment of the agreed installments.  It is admitted by the complainant that, OP No.3 not yet exhausted any of its remedies available to it under the terms of the loan agreement except issuing timely demand notices.  Such being the case, there was no situation arose for the complainant to bring an action against this OP No.3 by filing this complaint before this Forum.  This OP has issued notices dated 12.04.2016 and 11.07.2016 demanding to pay the remaining dues.  In the light of aforementioned averments, the present complaint does not survive for consideration.  Moreover, the foreclosure statement of account dated 16.09.2016 reflects that the complainant is liable to pay Rs.4,23,106/- to this OP.  The allegations made by the complaint are all against the dealer and not on this OP.  The financier is nowhere concerned with the issue raised by the complainant as the complainant was in requirement of funds had approached the L & T Finance and subsequently the loan was been disbursed at the request of the complainant. The complainant has not come with clean hands.  In view of the above said detailed discussion, the complaint filed by the complainant is liable to be dismissed.                          

    4.  Complainant himself has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-28 were got marked and closed her side. On behalf of OP No.1 and 2, one Sri. Mahantesh U Agadi, the Proprietor, HMT Tractors and Sri. N. Siddesh, the Head Mechanic of Adadi Bellad Motors, Davanagere have examined as DW-1 and 2 by filing the affidavit evidence, on behalf of OP No.3, one Sri. Mahantesh Hallur, the Authorized Representative has examined as DW-3, on behalf of OP No.4, one Sri. Jacob Gnanashekar, the Authorized Signatory has examined as DW-4 and on behalf of OP No.5, one Sri. Ashis Majumdar, the General Manager as DW-5 and Ex.B-1 to Ex.B-39 documents have been got marked and closed their side.  

 

5.      Arguments heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

(1)  Whether the complainant proves that the OPs have committed deficiency of service by selling the old used defective tractor to him and entitled for the reliefs as prayed for in the above complaint?

              (3) What order?

         7.       Our findings on the above points are as follows:-

                    Point No.1:- Partly in Affirmative. 

Point No.2:- As per final order.

REASONS

8.      Point No.1:- There is no dispute between the parties that, on 21.10.2014, the OP No.1 delivered brand new HMT Tractor manufactured by HMT Ltd., PINJORE bearing Tractor Serial No.23419, Engine No.23419 and Chassis No.E-2785 of the model February 2014.  Subsequently, the manufacturer supplied the said Tractor to Jayalakshmi Distributor, Bangalore on 06.03.2014 and sent the same to Yard of Jayalakshmi Distibutor at Hubli.  From there, OP No.1 taken delivery of the same in the month of September 2014 and sold to the complainant on 21.10.2014.  The complainant has given booking form on 22.09.2014 requesting to supply HMT Tractor, consists of terms and conditions. Again the complainant has paid Rs.1,000/- on 23.09.2014 towards advance amount, subsequently paid a sum of Rs.14,000/- on 26.09.2014 and again on the same day paid a sum of Rs.95,000/-.  Before delivery of the said brand new Tractor and before handing over the said Tractor to the complainant Pre Delivery Inspection Report has been carried out by the authorized Mechanic on 29.09.2014 and the said Mechanic inspected all major 46 components of the vehicle and issued the delivery report.  As per the Pre Delivery Report, the Tractor Hr. Meter Reading was 10 Hours, the same is due to transportation of the same from Hubli to Davanagere.  After satisfaction, the complainant paid Rs.20,000/- by way of cash on 30.09.2014 under receipt No.1605.  Subsequently, the complainant has taken loan from L & T Finance for Rs.4,23,503/-.  The L & T Finance has got issued delivery order to OP No.1.  However the OP No.1 has not delivered the Tractor to the complainant since the entire amount of Rs.6,17,161/- has not been paid to the OP No.1.  Thereafter on 21.10.2014, the complainant took delivery of the Tractor with an assurance that, the remaining balance of Rs.73,658/- will be paid in due course since he is facing difficulties to adjust the balance amount.  Towards the same, the complainant has given only cheque bearing No.259415 drawn on Pragati Gramina Bank, Godabanahal, but not five cheques.  After taking delivery of the said Tractor, there was some problems found in the said Tractor i.e., leakage of oil in the engine, hydraulic pump was not working during cultivation, steering wheel is pull down and clutch plate was also broken.  The complainant welded the clutch plate and steering wheel and again the same were broken.  There was a leakage in the radiator, leakage in the diesel tank and oil filters were also broken.  The complainant   intimated to OP No.3 not to release the loan amount to the OP No.1 and also given letter to OP No.3 intimating the same, therefore, the OP No.3 has not all released the loan to OP No.1.  The complainant reported about the problems found in the Tractor to OP No.1, immediately the OP No.1 deputed Mr. Siddesh, Mechanic and Mr. P. Jacob, Area Service in-charge of HMT Ltd., who visited the place to inspect the Tractor to attend the complaints if any, by that time the complainant was using the Tractor in cultivating the land, the Driver of the said Tractor intimated that, there is no mechanical problem nor any other problems and the Tractor is working very well.  Mr. Jacob, the Company Area Service in-charge also tested the Tractor and found that, there are no problems in the said Tractor.  Again the complainant again approached the L & T Finance for the second time with a request to sanction the loan.  Thereafter, the finance company initially denied to sanction the loan and thereafter rescheduled the loan amount and sanctioned the loan amount to the complainant only of Rs.3,28,190/- in favour of the OP No.1 in the month of June 2015 i.e., after lapse of seven months.  But the complainant submitted his arguments that, the Tractor is old and not working well and defective one, such being the case, there is no need to pay the amount.  Further it is argued that, the complainant initially by way of cash on different dates paid Rs.1,20,000/- and Rs.3,28,190/- paid by the Financier, in all Rs.4,48,190/- has been paid by the complainant and the complainant still liable to pay Rs.1,68,931/- together with interest @ 18% p.a as agreed by him.  After demanding the said balance amount of Rs.1,68,931/-, the complainant again issued one more blank cheque drawn on Pragati Gramina Bank,Godabanahal bearing No.259416 with an assurance that the said balance amount will be cleared together with interest within December 2015. After that  The OP No.1 repeatedly sent their person by name Mr. Siddesh to complainant’s village for balance payment for balance amount,  the complainant sent back the said person on one or the other reasons. Finally, the complainant agreed to pay the balance amount on 07.03.2016.  Thereafter on the same day the brother of complainant Chandrappa and Driver by name Omkar visited the OP No.1 show room for general checkup and regular maintenance, the same has been carried out.  On that day, the mechanic of the OP completely inspected the Tractor and found that, the said Tractor has no problems and raised a bill for Rs.5,497/- vide Bill No.530 and 531 dated 08.03.2016.  The complainant kept the vehicle in the show room till 11.03.2016 with an anticipation of clearing the entire balance amount and paid only Rs.5,000/- on 11.03.2016 vide receipt No.1712 and the complainant is still due of Rs.497/-.    Again on 11.03.2016 the OP No.1 demanded the balance amount of Rs.1,68,931/- together with interest @ 18% p.a.   Aas per the service manual, it is required to get first service of his Tractor within one month from the date of sale, the complainant gets the first service on 13.11.2014 at Chitradurga Service Centre and as per the Service Manual, the OP carried out the necessary jobs.  The complainant has not paid the service charges of Rs.3,000/-.  On 24.02.2014 the OP No.1 wrote a letter to the complainant intimating to come and bring the Tractor for service well in time, But, the complainant fails to do so and the complainant has not approached the OP No.1 for proper service as per service manual. 

The main arguments addressed by the complainant is that, the complainant is an agriculturist by profession having lands in his name in sy.No.26 measuring 4-Acres 26-Guntas and another land standing in the name of his wife in sy.No.26 of Doddapura village measuring 5-Acres. 26-Guntas.  For his agricultural use, he has purchased the HMT Tractor bearing Registration No.KA-17/NT 006360/2014-15, Engine No.68419 and Chassis No.E 278/52014 of Model HMT for a market value of Rs.6,17,161/- and delivered the said Tractor to the complainant on the same day.  Out of the said amount, the complainant has obtained a loan from OP No.3 for a sum of Rs.3,28,190/- and the remaining amount of Rs.2,88,971/- has been paid by the complainant by way of cash on 21.10.2014.  At the time of delivering the said Tractor, he had given five blank cheques drawn on PKGB, Godabanhal and six blank cheques drawn on Indian Bank, Chitradurga and also given two RTC extracts of his wife.  The tractor was purchased for doing agricultural works.  Immediately, on the next day of its purchase, there was a leakage of oil in the Engine and also hydraulic pump was not working well and the steering wheel of the tractor also pull down and clutch plate was broken.  Steering wheel and clutch plate were welded, but again both steering wheel and clutch plate were broken and there was a leakage of oil in the radiator and oil filters were also broken.  The complainant replaced the radiator and oil filters and still the said Tractor is defective with the said problems.  Further it is argued that, the OP No.1 has sold the repainted, second hand tractor to him.  The complainant brought the said tractor to the garage of OP No.1 and 2, they have repaired the same only one time at his residence, but the problems found in the said Tractor did not cured.  The complainant requested the OP No.1 and 2 for replacement of the Tractor of new one or to return the cost of the Tractor, but it went in vain.

It is argued by the OP No.1, 2, 4 and 5 argued that, the complainant has raised objections that the OP No.1 and 2 have supplied second hand repainted vehicle to him.  In this case, the main contention taken by the complainant is not sustainable under law and there are no manufacturing defects in the vehicle supplied by the OP No.1 and 2.  The complainant has not at all lead the expert evidence before this Forum and whereas in this case the complainant has not proved the allegations made in the complaint through expert evidence.  The complainant kept the vehicle in his house and not even produced before this Forum for inspection.  Further it is stated that the clutch plates were broken immediately on the next day or within warranty period, if that is so, the manufacturer will replace at free of cost and there is no need of welding the same.  The complainant never brought the tractor to OP No.1 with such type of complaint or else produced the bills for buying components.  Further it is submitted that the complainant has stated that the clutch plate and hydraulic pump were broken.  The complainant welded the clutch plate and steering wheel and used, it is more than strange and oppose to science and technology since no clutch plate and hydraulic pump could be weldable if they broken, the only option is to replace and which cannot be possible to weld and re-use.  Moreover the clutch plate located inside the engine and it is not possible to remove the clutch plate which is located inside the engine and it is not possible to remove the same by another person other than the mechanic and it could only possible to open the engine outside the show room.  Likewise, the hydraulic pump also could not be possible to weld and reuse.  Once the clutch plate is broken from the tractor, it could not run for a moment under any circumstances, it could be towed by using any other vehicle to showroom and get it repair.  The complainant never produced any single piece of evidence to show as to whether the clutch plate is removed from the engine and in which show room it was repaired.  Further it is submitted that, steering wheel is directly attached to the steering rod which is a single unit made by steel and directly connected to wheels, even in case of accident also, steering wheel will not be broken.  Such being the case, the question of removing the clutch plate and steering wheel could not be arise.  Further it is not possible to sold the repainted vehicle or second hand vehicle to the customers because when the vehicle produced before the RTO for registration, by that time, the RTO has entered the engine number, chassis number in the records and registration number has been given to the vehicles.  Once the registration number given to the customer to the vehicle, it cannot be possible to register the same vehicle again in any RTO throughout India.  Further it is submitted that, there is no manufacturing defects found in the vehicle and OP No.1 and 2 have sold the new brand vehicle and it is not the repainted or second hand vehicle.  The OP No.1 also filed a case before the Hon’ble Civil Judge Court, Davanagere for recovery of the balance amount from the complainant towards the loan installment. 

9.      We have gone through the entire documents, affidavits, written arguments filed by both the sides, it clearly goes to show that, the complainant has purchased the above said HMT Tractor from OP No.1.  The allegation of the complainant is that, the OP No.1 has supplied the defective and second hand Tractor the same is not sustainable under law because, as per the documents it is pertinent to note that, the OP No.1 has not supplied the second hand/repainted Tractor or defective tractor to the complainant.  The Advocate for the OPs also relied on various Judgments passed by the Hon’ble National Commission, New Delhi and various judgments passed by various Hon’ble State Commissions as mentioned below:

1. (2017) 2 CPJ 387 NC
2. (1994) 1 CPJ 165 NC
3. (2004) 2 CPJ 716 KL
4. (2003) 1 CPJ 244 WB
5. (2000) 3 CPJ 334 UP
6. (2000) 1 CPJ 54 MP
7. (2000) 1 CPJ 374 Goa
8. (1993) 1 CPJ 30 NC
9. (1995) 3 CPJ 77 KSCDRC
10. (1995) 3 CPJ 120 KSCDRC
11. (1996) 1 CPJ 283 KSCDRC

The OP also relied on a decision reported in 2017 1 CPJ 387 (NC) in the case of Ajay Kumar Thakur Vs. M/s Jaiswal Motors wherein the Hon’ble National Commission come to the conclusion that, NO automobile engineer was produced by the complainant/petitioner before the District Forum to prove that there was a manufacturing defect in the vehicle.  Though the vehicle was taken to workshop a number of times, the fact remains that it has been repaired.  The District Forum besides awarding the cost of repair has also awarded compensation quantified at Rs.25,000/- to the petitioner/complainant.  In the absence of any credible evidence that there is any manufacturing defect in the vehicle, the petitioner is not entitled to such replacement of the vehicle or refund of the entire price of the vehicle. 

 

OPs also relied on another decision reported in (2004) 2 CPJ 716 in the case of Krishnan Nair and Sons Vs. V. Sasi Nadar and another wherein it has been observed that, we have to point out here that the unwarranted assumptions has been made by the Forum below that there was manufacturing defect for the watch and learned counsel for the appellant is well founded to her submission that without any legally acceptable evidence the Forum below was not justified in reaching such a conclusion.  No specific allegation is made in the complaint that watch purchased suffered from manufacturing defect.  The watch was not sent to any approved laboratory to ascertain whether it suffered from manufacturing defect or not.  No expert evidence is adduced before the Forum below to prove a case that there was manufacturing defect for the watch.  Apart from stating the fact in his evidence that the watch stopped to work the complaint has not deposed that watch suffered from manufacturing defect.  For other reasons also watch may stop to work. As the watch was repaired by the manufacturer and it was returned by it to the complainant/first respondent the appellant cannot be made liable either for manufacturing defect if any or for deficiency in service, if any, on the part of the manufacturer.  So the only course open to us is to exonerate the appellant completely from the liability even though appellant has not chosen to contest the matter.  Evidence on record does not justify the conclusion reached by the Forum below regarding the liability of the appellant.

 

Another decision reported in (2003) 1 CPJ 244 in the case of Keshab Ram Mahato Vs. Hero Honda Motors Ltd., and another wherein it has been observed that, since there is no expert evidence to show that the motor bike suffers from manufacturing defect, they are not bound to replace the Motor Bike.  Learned counsel for the appellant submits that since the Motor Bike had gone out of order off and on, it is to be concluded that it has manufacturing defect.  In our opinion, no such conclusion can be arrived at without any expert evidence.  Here in this case there is no expert evidence who has deposed that he had examined the tractor and noticed that it is beyond repair.  In our view, in the absence of any expert evidence it is not possible to conclude that the tractor had manufacturing defect.  The defect in the tractor cannot be attributed of manufacturing defect but appears to be due to improper handling of the tractor by the driver who may not have been fully trained.  In this case also, all the defects alleged by the complainant cannot be attributed to manufacturing defect.  We, therefore, totally disagree with the contention taken by the complainant and accordingly, this Point No.1 is held as negative to the complainant.          

            10.     Point No.3:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The complaint filed by the complainant U/s 12 of CP Act 1986 is hereby dismissed.  No order as to costs. 

 (This order is made with the consent of Member after the correction of the draft on 22/03/2019 and it is pronounced in the open Court after our signatures)         

 

                                     

MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:  Sri. Sri. Mahantesh U Agadi, the Proprietor, HMT Tractors by way of affidavit evidence. 

DW-2:  Sri. N. Siddesh, the Head Mechanic of Adadi Bellad Motors, Davanagere by way of affidavit evidence. 

DW-3: Sri. Mahantesh Hallur, the Authorized Representative by way of affidavit evidence. 

DW-4:  Jacob Gnanashekar, the Authorized Signatory by way of affidavit evidence. 

DW-5: Sri. Ashis Majumdar, the General Manager by way of affidavit evidence. 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Form 21 (Sale Certificate)
02	Ex-A-2:-	Invoice-cum Delivery Challan
03	Ex-A-3:-	Temporary certificate of Registration
04	Ex-A-4:-	Letter dated 16.06.2015 to complainant by L & T Finance
05	Ex-A-5:-	Letter dated 19.06.2015 L & T Insurance to complainant
06	Ex-A-6:-	Letter dated 04.02.2015 by complainant Agadi Bellad Motors
07	Ex.A-7:-	Returned postal covered
08	Ex.A-8 to 10:-	Receipts of Agadi Bellad Motors dated 08.03.2016
09	Ex-A-11 to 13:-	Cash bills dated 16.03.2016, and 18.03.2016
10	Ex-A-14:-	Bonafide certificate
11	Ex-A-15 to 17:-	RTC extracts
12	Ex-A-18:-	Application for Krishbhagya Scheme
13	Ex-A-19:-	Legal notice dated 02.04.2016
14	Ex-A-20:-	4 postal receipts
15	Ex.A-21 to 24:-	Unserved postal covers
16	Ex.A-25:-	Reply dated 12.04.201
17	Ex.A-26:-	Photos
18	Ex-A-27:-	Cash bill dated 02.05.2016
19	Ex-A-28:-	2 CDs

Documents marked on behalf of OPs:

01	Ex-B-1:-	Owners manual
02	Ex.B-2:-	Invoice-cum delivery challan dated 21.10.2014
03	Ex-B-3 to 15:-	Cash receipts
04	Ex-B-16 to 21:-	Cash bills for fuel
05	Ex-B-22 to 31-	Cash bills of Agadi Bellad Motors
06	Ex-B-32:-	Terms and conditions of loan dated 22.09.2014
07	Ex.B-33:-	Pre delivery Inspection report dated 29.09.2014
08	Ex-B-34:-	Terms and conditions
09	Ex-B-35:-	Job Card
10	Ex-B-36 and 37:-	Postal receipts and letter dated 24.02.2014 to complainant by Agadi Bellad Motors
11	Ex.B-38:-	Cash receipt dated 08.03.2016
12	Ex-B-39:-	Certified copy of the order sheet in O.S.No.531/2017 of Hon’ble Prl. Civil Judge Court, Davanagere.

 

 

MEMBER                                                   PRESIDENT

Rhr**