BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.202 of 2015

Date of Instt. 14.05.2015

Date of Decision : 02.02.2016

Baljit Singh aged about 50 years son of Harnek Singh R/o Village Mian Da Pind, P.O Sagran, Tehsil Dasuya District Hoshiarpur.

..........Complainant Versus

1. Mohinder Agency for Same Deutz Fahr, through Harwinder Pal Singh @ Mintu son of Hari Krishan R/o H.No.439, Karol Bagh, PO Chugitti, Jalandhar.

2. M/s Same Deutz Fahr India Pvt Ltd., Regd.Office-72-M, SIPCOT, Industrial Complex, Ranipet, Tamil Nadu through its Deputy Manager Sh.Narender Kumar.

.........Opposite parties.

Complaint Under the Consumer Protection Act.

Before: Sh.Ashwani Kumar Mehta (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.LS Sohal Adv., counsel for complainant.

Sh.IS Aujla Adv., counsel for OP No.1.

Sh.Sushil Mehta Adv., counsel for OP No.2.

Order

Ashwani Kumar Mehta (President)

1. Complainant Baljit Singh filed the present complaint against Mohinder Agency etc opposite party (OPs) under section 12 of the Consumer Protection Act on the allegations of deficiency in service, unfair trade practice and negligence on the part of the OPs with a further prayer to direct the OPs to replace the defective tractor or to refund the sale price alongwith interest and to further pay Rs.1 Lac as damages for harassment, mental tension etc and Rs.11000/- as litigation expenses.

2. The case of the complainant in brief is that he purchased a tractor in question make 2013 bearing registration No.PB07AL-5321 from OP No.1 who is dealer of OP No.2 manufacturer of tractor for valuable consideration which also carried warranty for two years against manufacturing defect ; that even before the purchase of the tractor, the OP No.1 assured the complainant that tractor in question is of high quality and there is no manufacturing defect but immediately after purchase of the tractor in question, the complainant was shocked to note defect in the engine of the tractor and also found multiple defect in the engine and due to this reason, tractor in question started giving starting problem and used to stop working even in the fields; that complainant took the tractor to the workshop of OP No.1 and after keeping the tractor for sometime, the OP No.1 returned the same with the assurance that the defect has been rectified but the said defect persisted and as such complainant had to take the tractor in question to the workshop of OP No.1 for 5/6 times but each time, the defect was not rectified and proper service was not given by the OPs; that complainant even met Narinder in-charge employee of North India but he also failed to provide requisite service to the complainant as was promised at the time of purchase of the tractor and rather he advised the complainant to take the tractor to some other specialist for nozzle and other parts; that OP No.1 has also stopped its agency and the same is lying closed due to which reason, complainant could not contact OP No.1 for the rectification of the defect and the act and conduct of the OPs amounts to deficiency in service, unfair trade practice and negligence and as such OPs are required to be directed either to replace the defective tractor with new one or to refund the sale price of the tractor with interest from the date of payment alongwith damages of Rs.1 Lac for harassment and mental tension and Rs.11000/- as litigation expenses. Hence, complaint was filed.

3. After formal admission of the complaint, notice was issued to the OPs and OP No.1 appeared through counsel and filed written reply contesting the complaint on the preliminary objections that same is not maintainable in the present form and complainant is estopped by his own act and conduct from filing the present complaint as he did not serve any notice before filing the complaint and the answering OP is still running his business at the same place and is providing all type of after sale service to the customers; that complaint had been filed with malafide intention in order to harass the OPs and to extort money; that complaint is abuse of process of law and complainant has not come to the forum with clean hands and have suppressed the material fact and complaint is false and vexatious even to the knowledge of the complainant and complainant has not filed any bill or any other document in order to support his claim and as such no cause of action has arisen to the complainant for filing the complaint against the OPs. On merits, OP No.1 denied for want of knowledge, all the allegations of the complaint as not even a single document regarding the purchase of the tractor or regarding the visit of the complainant to the OP have been attached. It was also denied if complainant approached the answering OP before purchase of tractor or any assurance was given by OP No.1 and it was also denied if complainant purchased the tractor from OP No.1 though it was admitted that OP No.1 is agency holder of OP No.2 and warranty on the tractor is also not denied. It was denied if complainant ever complained to the answering OP regarding any defect in the tractor and as such the allegations leveled by the complainant are vague as complainant has not attached any document in support of his claim; that it was also denied if complainant ever brought the tractor in question to the workshop of the answering OP for alleged repair as no job card have been attached with the complaint. It was also denied if OP No.1 stopped his agency rather the same is still running at the same place. It was also denied if there is any deficiency and negligence in service on the part of the OP No.1 and complaint is false and is not maintainable and is liable to be dismissed with cost.

4. OP No.2 also appeared through counsel and filed written statement contesting the complaint on the preliminary objections that complaint is not maintainable as complainant is not consumer as defined under the Act and complaint also does qualify the ingredients of valid complaint as provided under the Act and is liable to be dismissed being false, frivolous, baseless and misconceived; that complainant has not come to the forum with clean hands and suppressed the material facts and is not maintainable as no cause of action have arisen to the complainant to file the complaint against answering OP and same is an abuse of the process of law and is liable to be discouraged and dismissed with special cost; that there is no deficiency in service on the part of OP and complaint is also not maintainable as tractor in question was purchased to carry out commercial activities and as such this forum has no jurisdiction to entertain or decide the complaint and same is liable to be decided by the civil court. It was admitted that complainant purchased the tractor in question for sale consideration and tractor was a brand new tractor without any manufacturing defect and complainant himself took the delivery and used the same for many years with no complaint. It was admitted that complainant came to answering OP once with a complaint of starting problem and same was immediately attended by the answering OP to the satisfaction of complainant as there was only a minor starting problem and complainant also signed the satisfaction note and submitted the same to the answering OP. On merits, it was admitted that complainant purchased the tractor in question from OP No.1 in 2013 for sale consideration which carried a warranty for two years against manufacturing defects. It was also admitted that OPs assured the complainant in case of manufacturing defect and same would be rectified by replacing the necessary spare parts of the tractor within warranty period and to be given free service during the warranty period. It was asserted that the brand new tractor was sold to the complainant without any manufacturing defect with the assurance that in case of any problem the necessary spare parts would be replaced and free service would be provided for the repair of the tractor during warranty period. It was asserted that once complainant came to answering OP with a complaint of some starting problem which was immediately attended to the satisfaction of the complainant as it was only a minor starting problem and complainant also signed the satisfaction note and handed over the same to the answering OP. All other allegations mentioned in the complaint were denied regarding defect in the tractor in question or regarding visits of the complainant to the OPs and a prayer was made for dismissal of the complaint with cost.

5. Both the parties were given sufficient opportunities to lead evidence in order to prove their respective case.

6. In support of his complaint, complainant has tendered into evidence affidavits Ex.CA and Ex.CB and closed evidence.

7. On the other hand, learned counsel for the opposite party No.1 has tendered affidavit Ex.OP1/A and closed evidence. Further learned counsel for OP No.2 tendered affidavit Ex.OP2/A alongwith copy of document Ex.OP2/1 and Ex.OP2/2 and closed evidence.

8. We have carefully gone through the record and also heard the learned counsels for the parties.

9. The learned counsel for the complainant submitted written arguments in which he argued the complaint on the same allegations as mentioned in the complaint and contended that the written statement of OP No.1 and OP No.2 are contradictory to each other as OP No.1 have even denied the sale of tractor in question to the complainant or regarding the visit of the complainant but OP No.2 have admitted the sale of the tractor to the complainant by OP No.1 and even visit of the complainant with a complaint in the tractor though OP No.2 claims to have rectified the defect in the tractor which is incorrect. It is the contention of the complainant that the allegations of the complaint stand proved from the affidavit of complainant and of Gurbax Lal who proved that the agency of OP No.1 remained closed for about 14 months w.e.f. February 2014. He contended that the allegations of the complainant stand proved on the file which also proved the deficiency in service and unfair trade practice on the part of the OPs and as such complainant is entitled for damages for harassment and mental tension etc and also entitled for replacement of the tractor with new one or in the alternative for refund of price with interest alongwith damages and litigation expenses. Hence, complaint is required to be allowed.

10. The learned counsel for the OP No.1 contended that the complaint is based simply on the oral allegations with no document to support the allegations of the complainant. He contended that even the bill vide which the tractor in question was purchased from OP No.1 have been proved by the complainant nor any job card have been proved by the complainant to show that tractor in question was purchased from OP No.1 or the tractor in question had any defect or complainant visited the OP No.1 for repair of the tractor. He contended that even the complainant have not proved any report of any expert to show that tractor in question have any manufacturing defect or even any other defect in it. He contended that even mechanic have not been examined by the complainant and as such the complaint is totally false and frivolous and has been filed as pressure tact and is liable to be dismissed.

11. The learned counsel for the OP No.2 admitted that the tractor in question was manufactured by OP No.2 and it was sold by OP No.1 for valuable consideration. It was also admitted that tractor in question had warranty for two years against any manufacturing defect or for free service during warranty period. He contended that a brand new tractor was sold to the complainant by OP No.1 which was having no manufacturing defect. He contended that the complaint is totally false to the effect that tractor in question have any manufacturing defect or complainant visited OP No.1 for 5/6 times for repair of the tractor. He further contended that once representative of the complainant visited OP No.2 for repair of the tractor and OP No.2 immediately attended the complaint and defect in the tractor was immediately rectified as it was only a minor starting problem and representative of the complainant also signed the satisfaction note Ex.OP2/1 which shows that there was no deficiency in service or negligence on the part of the OPs to attend the complaint of the complainant and complaint has been filed in order to extort illegal money from the OPs and as such complaint is liable to be dismissed with special cost.

12. The complainant has come to the forum with a specific allegation that the tractor in question have manufacturing defect and was having many other defects and the OP did not attend the complaint of the complainant for repair of the tractor. In order to succeed in the complaint, the complainant is to prove on the file that the tractor in question have any manufacturing defect or the OPs are deficient in providing service to the complainant regarding the repair of the tractor to make it workable but except oral allegations of the complainant in the form of affidavit, there is no other evidence on the file to show that the tractor in question have any manufacturing defect in it or the OPs are deficient in providing the service or are negligent and used unfair trade practice. Even the complainant have not proved the RC of the tractor in question in the present case though the same is attached with the file. Complainant alleged that OP No.1 closed its agency but as per Gurbax Lal, the OP No.1 closed the agency for 14 months w.e.f February 2014 but there is no documentary evidence on the file in this regard. The complainant have proved only registration certificate of the tractor in question on the file. Even if the allegation of the complainant regarding closure of agency of OP No.1 for sometime is admitted as correct even then OPs can not be declared as negligent or deficient in service because OP No.2 have proved a satisfaction note Ex.OP2/1 which is dated 10.6.2014 and as per Ex.OP2/1 three faults were pointed out by the complainant which were rectified by the OP No.2 and thereafter complainant gave the satisfaction note and in document Ex.OP2/2 two faults were pointed out by the complainant and OP No.2 rectified those faults and thereafter complainant gave the satisfaction note. As per affidavit of Gurbax Lal Ex.CB the agency of OP No.1 remained closed for 14 months w.e.f February 2014. The satisfaction note referred above shows that the complaint of complainant was even attended in June 2014 to the satisfaction of representative of the complainant. In this eventuality onus shift to the complainant to prove positively that tractor in question have any manufacturing defect or his complaint was not attended properly by the OPs. The complainant have alleged that he visited the workshop of OP No.1 for 5/6 times but no defect has been pointed out in the complaint or even in the affidavit submitted by the complainant in the Forum. It is a common knowledge that a vehicle has to be taken to the workshop for rectification of normal wear and tear of the vehicle and for its regular service. As such simple visit of the complainant for 5/6 times in the agency of OP No.1 is not sufficient to prove that tractor in question have any manufacturing defect or there was any deficiency in service on the part of OPs. Manufacturing defect can adequately be proved by examination of some mechanical expert but no such evidence has been brought on the file by the complainant. Even the manufacturing defect has not been specifically pointed out by the complainant in the complaint or on the file by any other evidence. In para No.9 of the written arguments, the complainant pointed out that he has proved the deficiency in service by proving RC of the tractor but even the exhibit is not properly mentioned for the RC and moreover simple proving of RC is not sufficient to prove deficiency in service or manufacturing defect. As such, complainant have failed to prove allegations of the complaint in the forum by any cogent evidence.

13. In the light of above discussion, the complainant failed to prove his case on the file and as such complaint is dismissed. However, in view of peculiar circumstances of the case, the parties are left to bear their own cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Ashwani Kumar Mehta

02.02.2016 Member Member President