Date  : 15.04.2013

Per Mr.K.B.Gawali, Hon`ble Member.

1.       This appeal is filed by original complainant against the judgment and order dated 4.3.2012 passed by District Forum Osmanabad in C.C.No.189/2010, whereby complaint is dismissed. Present respondent No.1 to 6 are original opponents.

2.       The case of appellant/org.complainant in brief is that he had purchased tractor of Mahindra company of the model 575 DI on 13.4.2009 bearing registration NO.MH-25/H 2467 by availing loan of Rs.4,50,000/- from respondent No.6.  That, after purchasing of the tractor within a month it was noticed that the tractor was being overheated when being operated for ploughing and transportation of sugarcane within 10 to 15 minutes and was being found difficult to start until the engine came down to the normal temperature.  That, the said fact was intimated to respondent No.3 who in turn tried to remove the said defect.  However the said defect was continued.  Thereafter again on 10.3.2010 said tractor was brought to the workshop of  respondent No.3 and was kept there for 4-5 days and after carrying out minor repairs it was handed over to the  appellant charging bill of Rs.2550/-.  But the defect was still subsisted and hence again on 8.5.2010 the same was brought to the respondent. However respondent No.3 without repairing the same it was returned back to the appellant.  Thus it was contended that tractor sold by him was having manufacturing defect for which he alleged the respondent No.1 to 5 to have committed deficiency in service and also indulged in unfair trade practice.  That, by legal notice dated 2.6.2010 he had demanded from respondent No.1 to 5 jointly and severally Rs.7,59,88/- towards cost of tractor and to replace the said tractor by new tractor along with cost of Rs.1000/-.  However since his notice was neglected by respondent, he filed complaint  before the District Forum seeking direction  against respondent No.1 to 3 to replace the said defective tractor by new one of the same company and model or to refund cost of said tractor amounting to Rs.7,59,800/- along with interest @ 12% p.a. from the date of purchase till realisation of entire amount. In addition, it was also sought direction to compensate him Rs.3 lakhs on the ground that they sold him defective tractor, Rs.50,000/- towards mental agony and Rs.20,000/- towards cost of complaint  and Rs.1000/- as cost of notice.

3.       Respondent No.1 i.e. manufacturing company appeared before the Forum and resisted the claim by way of written version. It was contended  that respondent No.3 was not its agent and that he had purchased tractor for resale. It was also contended  that the said tractor was sold to the appellant on 13.4.2009 without any defects. It was further contended that nowhere in the job card of the servicing and repairs made from time to time, the appellant/org.complainant had complained about the overheating problem of the engine.  That it is only in his complaint he had mentioned the said defect. It was also contended that the tractor already run for 1302 hours during the period from 13.4.2009 to 5.5.2010 i.e. one year and 22 days. Thus for every month the average running is for 100 hours.  Therefore the allegation that tractor was having defect of overheating of engine was false and frivolous. It was also contended that appellant has failed to follow the guidelines of servicing of the said tractor and also regarding the operating and maintenance of the same. It was contended that servicing of the said tractor was not done as per schedule given in the booklet which was supplied to the appellant at the time of sale of tractor. It was thus contended that tractor was not having manufacturing defects and the complaint being false and frivolous be dismissed.

4.       Respondent No.2 to 5 also appeared before the Forum and resisted the claim of complainant. It was contended that on 12.5.2009 the appellant had complained about the non-working of the fuel meter, on 3.12.2009 complaint was of jamming steering, on 15.12.2009 complaint  was made that tractor was not being  started.  However on 22.1.2010 complaint  was about noise in the gear and further on 13.3.2010, 5.5.2010 there was other complaints. However at no time before filing of complaint the appellant/complainant  had complained about overheating of the engine.  That, as per job card the free servicing of the said tractor was done and also minor complaints which were made by appellant were also removed and prompt service was given to him.  Therefore there was no deficiency in service  and tractor supplied to him was also having no manufacturing defect.  Therefore complaint  be dismissed.

5.       Respondent No.6 also appeared before the Forum and submitted that the appellant was given loan of Rs.4,30,000/- to be paid in 10 half yearly instalments each being of Rs.12,855/-.  That, the entire loan was to be paid during the period from 15.9.2009 to 15.5.2014. That, he had paid only one instalment of Rs.73,745/- and thereafter he had defaulted further instalments.  Therefore there was an outstanding loan of Rs.6,60,672/- as on 23.7.2010.  It was further contended  that the appellant was trying to avoid the repayment of loan on the ground of defective tractor. However this respondent is noway concerned with the allegation regarding defects in the tractor.  Therefore complaint  against him be dismissed.

6.       District Forum after perusal of the record and hearing parties has dismissed the complaint . It is observed by District Forum that appellant/org.complainant has not proved that there was manufacturing defect in the said tractor.  It has further observed that on the application of the appellant the opponent No.1 appointed expert namely Shri.Sudhanva Patki who is a surveyor.  However as per his report dated 30.11.2010 he suggested to have the inspection by third party and avoided to come to conclusion regarding defectiveness of the tractor. It is further observed by District Forum that appellant had made complaint  regarding overheating of the tractor only by way of his complaint  but in the job card pertaining to servicing of the said tractor there is no mention or complaint  about the said overheating problem of the tractor. As the appellant did not prove that there was manufacturing defect, complaint  came to be dismissed.

7.       The complainant, aggrieved by the said judgment and order filed this appeal in this Commission which was finally heard on 31.3.2013. Adv.Shri.S.S.Bhise was present for the appellant, Adv.Shri.K.M.Chandaliya was present for respondent No.1,Adv.Shri.L.R.Kanade was present for Rs.2 to 5, Adv.Shri.R.S.Gangakhedkar was present for respondent No.6.  We heard learned counsels of the respective parties finally at the stage of admission with their consent and appeal was reserved for judgment and order.

8.       From the perusal of complaint  and available record it is observed that main grievance of complainant is about overheating of the said tractor which was not repaired by respondent No.1 to 3.  Learned counsel Shri.S.S.Bhise present for appellant submitted that problem regarding tractor was started within a month from the date of purchase. That every time there was new problem with the tractor and basically within 10 to 15 minutes of its working the engine of the tractor was being overheated.  That, this defect although brought to the notice of respondent No.1 to 3 the same could not be removed. That, due to this major defect in the tractor, appellant could not use the tractor and therefore it was difficult for him to repay the loan raised from respondent No.6.  He therefore contended that although the record of job card regarding defectiveness of the tractor and also the report of expert was on record in which it was mentioned that at the time of trial the tractor was overheated within 11 minutes of its working.  However District Forum did not appreciate evidence as produced by the appellant before it and has erroneously dismissed the complaint . He therefore requested to set aside the impugned judgment and order by allowing appeal.

9.       On the other hand, learned counsel for respondent No.1 to 5 submitted that appellant had never complained about the problem of overheating of the engine of the said tractor during the free servicing which was evident from job card of the said servicing as produced on record.  It is only in his consumer complaint  filed before the Forum for the first time he made complaint  of overheating of the engine. It was thus contended  by the learned counsel that the alleged manufacturing defect in the said tractor had not been proved and hence there was no deficiency in service  or unfair trade practice on the part of respondent No.1 to 5.  It was therefore averred that the District Forum has rightly passed the impugned judgment and order dismissing the complaint .

10.     On the other hand, learned counsel for respondent No.6 submitted that his concern is only about recovery of loan and not about alleged defects in the tractor. He further contended  that as per hypothecation agreement respondent No.6 was legally entitled to repossess the vehicle and/or  recover the loan amount etc.  However since there was no prayer against him, no order be passed against this respondent. 

11.     We have perused the record and also considered oral submissions as advanced by learned counsels of respective parties.  As observed by District Forum, it is revealed from the job card  that the appellant had never made any complaint  about overheating of the engine of the said tractor.  Whatever complaints were made were of minor in nature i.e. non-working of fuel meter and jamming of the steering, starting problem of the tractor etc.  All these problems were removed at the time of servicing which is evident from the job card.  It is further observed that the appellant has failed to have regular servicing and maintenance of the said tractor as per manual provided by respondent NO.1.  That, the respondent No.1 manufacturing company in its written version has clearly mentioned that servicing was not done on the given time and it was delayed which adversely affected the proper functioning of the tractor.  it is also observed that the tractor had run 1302 hours within the period of one year 22 days i.e. during period from 13.4.2009 to 5.5.2010 i.e. 100 hours per month.  If there was overheating problem of engine of the tractor it could not have covered the running of 1302 hours.  Therefore it can be said that the appellant has failed to prove that there was any manufacturing defect in the said tractor.  There is one application dated 14.5.2010 made by appellant to respondent No.6 i.e. finance company in which it had requested that due to manufacturing defect in the said tractor he could not pay the instalement and therefore manufacturing company be requested to replace the said tractor.  From this application it appears that appellant tried to create background to earn sympathy for not taking any stern action by the finance company on account of default in payment of loan instalment. It is admitted fact that respondent has paid only one instalment of loan and has failed to pay remaining instalment. It can therefore be said that to avoid regular payment of loan, appellant has filed present complaint  before the Forum.

12.     In view of the above said facts and observation we find that manufacturing defect as alleged by appellant has not been proved and hence there is no fault in the impugned judgment and order passed by District Forum dismissing the complaint. We do not find any substance in the present appeal as filed by complainant.  In the result, we pass the following order.

                                                O   R    D    E    R

1.     Appeal is dismissed.

2.     No order as to cost.

3.     Copies of the judgment be issued to both the parties.

Pronounced on dt.15.04.2013