Haryana

Karnal

353/2012

Bhag Singh S/o Ram Kishan - Complainant(s)

Versus

Mahindra And Mahindra Ltd.,Mahindra And Mahindra Ltd., Sawraj Division Mahindra And Mahindra Ltd.,P. - Opp.Party(s)

D.P. Raman

03 Aug 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No.353 of 2012

                                                               Date of instt:23.07.2012

                                                               Date of decision:17 .09.2015

 

 

Bhag Singh son of Sh.Ram Kishan r/o village Shamgarh tehsil and District Karnal.

                                                             ……….Complainant.

                             Versus

 

1.Mahindra & Mahindra Ltd. c/o Haryana Automobiles, out side Jattan Gate, near Meera Ghati  Karnal through its Prorpietor D.C.Gupta.

 

2.Swaraj Division, Tractor–Plant-2, Mahindra and Mahidnra Ltd. village Chappercheri P.O.Landran tehsil and district S.A.S Nagar (Mohalli) Punjab, through its Managing Director.

 

3.P.M.Saini Director/Manager, Mahindra and Mahindra Swaraj Division  Plant –II, Chappercheri P.O.Landran tehsil and District S.A.S. Nagar (Mohali)Punjab.

 

                                                           ……… Opposite parties.

 

                    Complaint U/s  12  of the Consumer

                     Protection Act.

 

Before          Sh.K.C.Sharma……. President.

                   Sh.Anil Sharma ………Member.

                   Smt.Shashi Sharma…..Member.   

         

 

 Present:       Sh.D.P.Raman Advocate for the complainant.

                   Sh. T.L.Garg Advocate for the Ops.

                  

ORDER:

 

                        This complaint u/s  12 of the Consumer Protection Act 1986, (hereinafter referred to as the Act) has been filed by the complainant on the averments that he purchased one Sawraj 8100 Harvester Combine S1 No.10, Material No.40000, Chasis No.11H155 Engine No. TBE 1095202  for a sale consideration of Rs.1529750/-  vide bill /invoice No. 2712009259 dated 29.7.2011 under delivery challan No.8201477281  and the same was financed by Kotak Mahindra Bank Ltd. Karnal.  OP No.1 is  the service centre of OPs No.2 and 3 .All the formalities and delivery of the Harvester and payment of consideration were done at Karnal. Harvester  was carrying   warranty of two consecutive harvesting seasons which  were to  last till 28.7.2012.   During the  period of warranty harvester became unserviceable   many   times  and parts were taken from Ops as and when required  and the same were changed by OP no.1.  The harvester became unserviceable in the month of May, 2012 and  some parts were purchased by the complainant from OP No.1 under warranty period and the  machine  became serviceable,  but again in the month of June, 2012, the harvester became unserviceable and the parts/components were  removed by the OP No.1 at Karnal and a list was prepared on 13.6.2012 and all the parts were taken over by OP No.1 under his signatures on 13.6.2012.  OP No.1 informed him that he should accompany his employees to OPs No.2 and 3  alongwith unserviceable parts.  Accordingly, the complainant accompanied employees of OP No.1 and all the unserviceable parts/equipments were deposited  with Ops no.2 and 3 vide receipt dated 25.6.2012.  In those parts, some of the parts were purchased by him on 19.5.2012.  Ops assured that within 2/3 days all the unserviceable parts would be delivered to the complainant at authorized service centre i.e. OP No.1, but the Ops did not supply the parts. The complainant approached the Ops a number of times  to supply parts deposited with Ops No.2 and 3 as per the list, but the Ops refused to supply. Thus, there was deficiency in services on the part of the Ops, which caused harassment to the complainant apart from financial loss.

 

2.                Notice of the complaint was given to the Ops. They put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that this Forum has no territorial jurisdiction to entertain and decide thepresent complaint as n o cause of action accrued within the jurisdiction of this Forum; that the  complainant is not consumer  within the meaning of section 2(1) (d) (i) Act  as he had purchased the harvester Combine from OP No.2  for commercial purposes; that the complainant has not produced report of any independent expert as is required to  substantiate the alleged manufacturing defect; that the complaint is false,  frivolous and  vexatious; that the complainant has no cause of action and that the complainant has not approached this Forum with clean hands.

 

                   On merits,  it has been submitted that the OP No.1 had no role in billing and delivery of Harvester Combine at Karnal.   The Harvester  was billed directly to the customer by Op No.2 at SAS Nagar (Mohali)  and the complainant made the payment at the said place.    Delivery of the harvester was also taken by the complainant at SAS Nagar  Mohali. It has further been averred that the OP No.2 provided a warranty of the harvester for two consecutive seasons, which was expired on  30.4.2012  because the first season of paddy completed in November, 2011 and second season of wheat completed in  April, 2012.  The Op No.1 only facilitated the customers of Harvester combines for providing spare parts and replace spare parts under warranty.  The complainant never approached  with his harvester for repairs at Service Centre, at Karnal.  The  complainant brought  parts at  service centre, Karnal  and OP No.1 replaced parts in warranty in good faith.  The complainant repaired the harvester himself  even though the OP No.3 suggested the complainant number of times that harvester combine will be checked and diagnosed only by their service engineers during the warranty period. It has further been pleaded that on the request of complainant, the harvester  in question was checked by the Service Engineers  in Itarsi (Madhya Pradesh)  on 14.10.2011 and replaced one part. The complainant again requested the OP No.3  to inspect the harvester in February, 2012  and then Dharambir Rana and Mr.Rahul Patankar, service Engineers  of OP No.2 visited  village and  Taluka Shrigonda (Maharashtra) on 9.2.2012 and found  that the harvester was performing very well.  Thereafter,  the complainant operated the harvester   in Maharashtra for wheat harvesting season and then he moved the harvester to Chhattisgarh for next season. Thus, the harvester in question was performing well even after completion of the warranty  period. It has further been  submitted that the complainant had not disclosed the location where he was running the same in the months of May and June, 2012. Parts purchased by the complainant do not belong to the harvester in question, but the same were of some other harvester. There was no deficiency in service on the part of the Ops. The other allegations made in the complaint have been denied specifically.

 

3.                In evidence of the complainant, he filed his affidavit Ex.C1 and documents Ex.C2 to Ex.C16.

 

4.                On the  other hand, in the evidence of the Ops, affidavits of Sh.Zahid Hussan , partner of Haryana Automobiles Ex.OP2 and Ex.OP2 and documents Ex.OPOP2 Ex.OP12 have been tendered.

 

5.                We have heard the learned counsel for the parties and have gone through the case file very carefully.

 

6.                The complainant had purchased one harvester  Swaraj Model 8100 on 29.7.2011 which was carrying  warranty of two consecutive harvesting seasons. Some parts of the harvester became unserviceable and the same were deposited by the complainant and  employees of OP no.1  with the Ops no.2 and 3 on 25.6.2012,  but new parts were not supplied by the OPs in place of  the  said unserviceable parts.

7.                The learned counsel for the Ops vehemently argued that complainant purchased the harvester for commercial purpose and not for personal use. This fact stands established from documents Ex.O11 and Ex.O12  that complainant and his brothers had already one harvester. Therefore, the complainant does not fall within the definition of Consumer as provided u/s 2(1)(d) of the Act.

8.                The argument advanced by the learned counsel for the Ops cannot be accepted being devoid of force. Documents Ex.O11 and Ex.O12 only indicates that  complainant and his brothers  Jasbir Singh and Sukhbir Singh had  purchased one harvester on 31.5.2010 and delivery of the said harvester was taken by Jasbir Singh and not by the complainant. There is no material on record  which may show that the complainant is also getting income by using the said harvester also. The harvester purchased by all the three brothers jointly may be in possession of  other two brothers and they might be using the same  and  for that reason the complainant had to purchase the harvester in question. Even if,  it is accepted that harvester was purchased by the complainant for commercial purpose, then also he is to be treated as consumer, if the harvester became defective within the warranty period.  In this regard sustenance can may be sought from the judgment of Hon’ble National Commission in case  Larsen and Tourbo Ltd. Versus Krishan Kuamr Dhankar and Ors. 2009() CPC 461,  “ wherein plant and machinery were purchased for commercial purpose but the machinery was found to be defective within warranty period. It was held that though the machinery was sold for commercial purpose, still purchaser would be a consumer under the Act. “ The judgment of Hon’ble National Commission in case  Punjab Tractors Ltd. Versus Angrej Singh and Anr. 2011(1) CPC 430, squarely covers the facts of the present case. In the cited  case complainant purchased one  harvester  from OP  with one year warranty. Ten defects were detected by the committee of the technicians and Ops insisted upon the complainant to bring the defective parts to the workshop  for replacement. It was held that OP was bound to replace all the components by sending their technicians.  In  Wipro Limited Versus Toppers Mulltimedia (P)Limited 2010 (2) CPC 177,    the consumer was  Corporate entity and the goods were purchased for commercial  purpose. It was  held by the Hon’ble National Commission that for  availing services under warranty, the complainant was entitled to seek Redressal under the Act and  the complaint under the  Act was maintainable.”

 

9.       The next contention raised by the learned counsel for the Ops  is that harvester was sold to the complainant at SAS Nagar (Mohali) Punjab at the manufacturing Division  of the Ops no.2 and 3, the payment was also received there and delivery to the complainant was also made there. The defects in the harvester did not occur  while being used at Karnal, rather the same was  in Maharashtra at that time, therefore, this Forum at Karnal has got no jurisdiction to entertain and decide the present complaint.

 

10.     The argument is not  tenable. The copy of the invoice Ex.OP4 shows that destination was mentioned as Karnal, which indicates that harvester was to be delivered to the complainant at Karnal and not at SAS Nagar, Mohali, though  the invoice was  issued by the Ops from SAS Nagar (Mohali). Copy of the Insurance policy Ex.C6 tends to show that Insurance policy regarding the harvester was issued at Karnal on 28.7.2011 i.e. one day prior to issuance of the invoice and delivery of the same to the complainant. For issuance of the policy, the harvester must have been physically inspected by the insurance company. The complainant got financed the harvester from Kotak Mahindra Bank Limited, Karnal and before delivery of the same,  the vehicle was got insured. Therefore, the plea of the OP that harvester was delivered  to the complainant  at SAS Nagar (Mohali) Punjab  cannot be accepted. Moreover, it is clear from the document Ex.C8 that OP no.1 is the authorized service centre/spare parts out let of the Ops no.2 and 3 at Karnal.  Even, the complainant purchased some parts for his harvester from OP No.1 at Karnal on 19.5.2012. Under such circumstances, it can very well be said that cause of action accrued to the complainant at Karnal and not at any other place, therefore, this Forum has jurisdiction to entertain and decide the present complaint.

 

11.               It has further been argued by the learned counsel for the Ops that warranty of the harvester was for two consecutive harvesting seasons; first season of paddy completed in November, 2011 and second  season of wheat completed in April, 2012.  As per the case of the complainant some parts of the harvester became unserviceable in June, 2012, which were removed by the technicians of OP No.1 and deposited with the Ops no.2 and 3  on 25.6.2012, therefore, the defects in the harvester occurred beyond the period of warranty and as such the OPs were not liable to   replace the unserviceable parts or  remove defects in the harvester or replace the  entire harvester.

 

12.               No doubt,  in Northern India, the paddy harvesting season comes to end in the month of November and the  wheat  harvesting season comes to an end in the months of April/May, but it cannot be said that season of harvesting wheat comes to  an end in the month of  May throughout the country. Ops have submitted in their written statement that complainant was operating harvester in other States also. Under such circumstances, two consecutive harvesting seasons must be considered as a period of one year. The harvester  was  purchased by the complainant on 29.7.2011, therefore, two consecutive seasons  are to be considered upto 28.7.2012. Therefore, plea cannot be accepted that defects in the harvester occurred beyond the period of warranty. Therefore, the defects in the harvester which occurred in the month of June, 2012 are certainly covered during the warranty period of two consecutive harvesting seasons.

 

13.               The complainant in the complaint submitted that defective parts were removed from the harvester by the OP no.1 at Karnal and list thereof was prepared on 13.6.2012; that the complainant was informed that  he should accompany the employees of Ops no.1 to  the Ops no.2 and 3  alongwith unserviceable parts and accordingly he alongwith employees of OP no.1 deposited the unserviceable parts with the OPs no.2 and 3 on 25.6.2012.  Affidavit of the complainant  Ex.C1  and documents Ex.C13 and Ex.C14  lend support to this plea of the complainant. The evidence in this regard has gone unrebutted and there is no reason to disbelieve the same. Even Ops in their written statement have not  disputed the factum of  depositing some parts by the complainant on 25.6.2012. Ex.C14 indicates that parts were kept by the Ops for Quality Inspector’s report. However, Ops could not produce any report of the Quality Inspector in order to show that parts deposited with them on 25.6.2012 were serviceable or belonged to some other harvester as alleged in the written statement. Thus, the  best evidence available with the Ops has been withheld, therefore, adverse inference is to be drawn against them. Under such circumstances, it is to be considered that parts deposited with the Ops no.2 and 3 on 25.6.2012 belonged to the harvester in question and the same were   unserviceable. Consequently, the Ops were bound to replace those parts or pay to the complainant, the value thereof, but neither those parts were replaced nor  value thereof was paid to the complainant, which certainly amounted to deficiency in services on the part of the Ops.

 

14.     As a sequel to the foregoing discussion, we accept the present complaint and direct the Ops to replace the parts of the harvester of the complainant as mentioned in the lists Ex.C13 and Ex.C14 or to pay the value thereof. The complainant shall also lbe entitled for a sum of Rs.10,000/- as compensation for the mental agony and harassment caused to him and Rs.5000/- towards legal fee and litigation expenses. The Ops shall make the compliance of this order within  a period of thirty days from the date of receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:17.09.2015                                                        

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 (Anil Sharma)       (Smt.Shashi Sharma)    

   Member.                             Member.

 

 

 

 

 

Present:        Sh.D.P.Raman Advocate for the complainant.

                   Sh. T.L.Garg Advocate for the Ops.

 

                   Arguments in part heard. For remaining arguments, the case is adjourned to 17.9.2015.

 

Announced
dated: 27.8.2015                                                         

                                                                 (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 (Anil Sharma)       (Smt.Shashi Sharma)    

   Member.                             Member.

 

 

Present:        Sh.D.P.Raman Advocate for the complainant.

                   Sh. T.L.Garg Advocate for the Ops.

 

                   Remaining arguments heard. Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
dated:17.09.2015                                                        

                                                                (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 (Anil Sharma)       (Smt.Shashi Sharma)    

   Member.                              Member.