| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA. Complaint No. CC/15/107 of 20.5.2015 Decided on: 20.11.2015 Kashmir Singh son of Jagroop Singh, resident of village Bherpuri, P.O.Kularan, Tehsil Samana, District Patiala. …………...Complainant Versus 1. M/s Bahmna Automobiles, through its Proprietor/Partner, Near Grain Market, Main Gate, Bhawanigarh Road, Samana,District Patiala. 2. Proprietor/Partner,M/s Bahmna Automobiles, Near Grain Market, Main Gate, Bhawanigarh Road, Samana, District Patiala (Op no.2 withdrawn vide order dated 21.5.2011 of the Forum) …………….Ops Complaint under Section 12 of the Consumer Protection Act. QUORUM Sh.D.R.Arora, President Smt.Neelam Gupta, Member Smt.Sonia Bansal,Member Present: For the complainant: Sh.Gaurav Bansal , Advocate For Op: Sh.Gagandeep Singh Sidhu, Advocate ORDER D.R.ARORA, PRESIDENT - It is the case of the complainant that he had purchased one tractor make Farmtrack 6065 model F-10005600 bearing engine No.E2318254, chassis No. T052314371 bearing registration No.PB-11BR-3588 on 31.12.2014 for Rs.7,50,000/- from Op no.1. The complainant made a use of the tractor for agricultural purposes in his fields. On 23.4.2015 when he was using the tractor in his fields that suddenly the same had got seized and did not start again. At this the complainant lodged the complain with the Ops which was registered with reference to No.15042449356 dated 24.4.2015, in respect of which the complainant received the message from the complaint center.
- The Ops kept the tractor in their custody but failed to repair till the filing of the complaint. The complainant made several requests to the Ops and who assured to replace the same with new one but the same was not replaced. The complainant was suffering the agricultural loss on account of the non availability of the tractor. He could not use his reaper for cutting the wheat straw for preparing the cheff in the absence of the tractor and thus he suffered the loss. He had to engage the labourers for preparing the cheff for which he had to pay a sum of Rs.25000/-. Similarly he could not make use of the other agricultural equipments like rotavator and roto seed drill in the absence of the tractor. It is alleged that the complainant is entitled to a compensation in a sum of Rs.15,00,000/-. Accordingly the complainant brought this complaint against the Ops under Section 12 of the Consumer Protection Act,1986 ( for short the Act) for a direction to the Ops to pay him Rs.15,55,000/-
i.e. Rs.7,50,000/- the price of the tractor and compensation in a sum of Rs.2,50,000/- plus Rs.55000/- costs of the litigation and the financial loss in a sum of Rs.five lac. - The cognizance of the complaint was taken against Op no.1 only as the complaint against Op no.2 was filed as withdrawn. Op No.1 on appearance filed the written version having raised certain preliminary objections, interalia that the complaint is bad for the non joinder of the manufacturer of the tractor and that the complaint is not maintainable. As regards the facts of the complaint, the Op has not denied the complainant having purchased the tractor in question from it but it is denied that on a user of the same, the same had seized on 23.4.2015, when the complainant was using the same in his fields and the same had not started again .It is however, admitted that the complainant had lodged the complaint with the Op on 24.4.2015. It is denied that the Op has kept the tractor with it of its own and rather the complainant had left the vehicle with the Op for the sake of repair. It is also the plea taken up by the Op that at the time of the sale of the tractor, the complainant was informed to avail all free services in time and the said fact is also mentioned in the operator manual provided alongwith the tractor but the complainant failed to follow the service schedule and availed the first free service after having plied the tractor for 107 hours although as per the service schedule the first service had to be availed of after 50 hours of use. Similarly the complainant was apprised to keep a regular check on the water level in the engine and that immediately on the drop of the water level to fill the engine with water but the complainant negligently failed to check up the water level and as a result the water had reduced and the same caused the engine to seize. After the purchase of the tractor, the complainant had not reported any problem in the tractor till 23.4.2015. On the said date when the complainant visited the dealership of the Op with regard to the problem in the engine, the mechanic had thoroughly inspected the tractor including the engine and apprised that the problem occurred due to drop in the level of the water and the complainant was informed that the damage had occurred due to his aforesaid negligence and therefore, the same was not covered under the warranty policy and therefore, the engine needed to be repaired at the cost of the complainant but the complainant instead of getting the engine repaired had left the same at the dealership of the Op and sent a legal notice dated 8.5.2015, which was duly replied by the Op on 26.5.2015.The complainant has not deliberately got the tractor repaired with a malafide intention so as to get undue advantage. It is admitted by the Op that the tractor is lying with it in a defective condition but it is denied that the complainant made several requests to deliver the tractor or that the Op told the complainant that they will replace the tractor with new one. It is denied that the complainant has suffered any agricultural loss due to the non availability of the tractor. There was no deficiency of service or unfair trade practice on the part of the Op. The complainant is not entitled to get the tractor repaired qua the replacement of the same. After denouncing the other averments of the complaint, going against the Op, it was prayed to dismiss the complaint.
- In support of the complaint, the complainant produced in evidence Ex.CA his sworn affidavit, Ex.CB , the sworn affidavit of Sh.Ajaib Singh, Ex.CC, the sworn affidavit of Sh.Bharpur Singh alongwith the documents Exs.C1 to C13 and his counsel closed the evidence.
- On the other hand, on behalf of the Ops, it’s counsel tendered in evidence Ex.OPA, the sworn affidavit of Sh.Gurdeep Singh, Prop. of the Op and closed the evidence.
- The complainant filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.
- It is a fact admitted by the Op that the complainant had brought his tractor to it on 24.4.2015 and the same was left by the complainant for the sake of repair. It is also the plea taken up by the Op that the complainant had failed to get all the free services in time and he further failed to keep up the level of the water in the engine of the tractor and the water level having dropped, the same got seized. It is also the plea taken up by the Op that the complainant had availed the first free service after the user of the tractor for 107 hours although the same had to be got after having used for 50 hours. However, the Op has not lead any evidence by way of having produced the job sheet, which might have been prepared by it on 24.4.2015 to show that on the inspection of the same by the mechanic, a note was given that there was drop in the level of the water in the engine and therefore, the engine had got seized. Similarly no evidence has been lead by the Op that the complainant had not got the first free service in time i.e. after a user of the same for 50 hours and that he failed to get the other free services in time. A dealer of the tractors, who is also a service centre in the matter of providing the after sales service, in routine maintains the service record of the tractors and therefore, it was not difficult for the Op to have produced the aforesaid evidence, in the absence of which we do not find any reason to accept the plea of the Op.
- It was submitted by Sh.Gaurav Bansal, the learned counsel for the complainant that as a matter of fact the Op wanted to charge the complainant for repairing the engine of the tractor despite the fact that the same was within the warranty period, a fact not disputed by the Op although the complainant was not at fault for the seizure of the tractor as the seizure occurred due to some manufacturing defect in the tractor.
- Here it may be noted that the Op has produced on file the reply dated 26.5.2015 got sent by the Op through its counsel Sh.Karamjit Singh Randhawa, Advocate in response to the legal notice Ex.C7 dated 8.5.2015 got sent by the complainant against the Op and today the learned counsel for the complainant on the basis of the application moved by the Op to produce the said reply in additional evidence suffered the statement that he has got no objection in case the same is read in evidence. The same plea has been taken up by the Op in the said reply given to the notice of the complainant but the fact of the matter is that the Op has failed to substantiate the same.
- It was submitted by Sh.Gaurav Bansal, the learned counsel for the complainant that the tractor of the complainant is lying parked with the Op since 24.4.2015 and for no good reason the Op has failed to repair the same and as a result the complainant has suffered a lot in his agricultural pursuits as straw reaper purchased vide bill dated 6.4.2015,Ex.C4 is lying idle for want of the tractor. Similarly the complainant could not make a use of his rotavator and roto seed drill in respect of which he has placed on file the estimate copies Exs.C5 and C6 dated 22.6.2014 and 28.10.2014 and therefore, it was submitted that the complainant be got suitably compensated by the Op. Apparently Exs.C5 and C6 are the estimates and not the bills so as to say that the complainant had ppurchased rotavator and roto seed drill from M/s S.S.Agricultural Works, Samana. The complainant has not lead any evidence that he is owning and possessing any land and the same was sown with the crop of wheat in Haari 2015 and he could not make a use of the wheat straw. In order to claim a compensation on that count, the complainant was obliged to produce the revenue record consisting of the copy of jamabandi and of the khasra girdawari to show the area of the land owned and possessed by him and further to show that he had sown the crop of wheat for Haari 2015 , in the absence of which no relief can be granted to the complainant on account of any loss for not having made a use of wheat straw qua the use of the rotavator and roto seed drill. We however, take a note of the fact that the Op has kept the tractor of the complainant with it for long without any good reason and resultantly the complainant had to suffer on account of the non user of the same for agricultural purposes.
- The learned counsel for the Op could not raise any point for want of evidence to have been lead by the Op.
- As a result of our aforesaid discussion, it would appear that the failure on the part of the Op to repair the tractor of the complainant during the warranty period was certainly a deficiency of service and the demand of the repair charges amounted to an unfair trade practice and therefore, we accept the complaint and direct Op no.1 to repair the tractor of the complainant by preparing a job sheet noting the defects in the same as disclosed by the complainant and to rectify the same within 10 days to the satisfaction of the complainant on receipt of the certified copy of the order against a satisfaction note to be obtained from the complainant or the copy of the same being produced by the complainant. We also award the complainant with a compensation on account of the deficiency in service on the part of the Op as also the harassment and mental agony experienced by him in the absence of the tractor, in a sum of Rs.50,000/-, which is inclusive of the costs of the complaint. The payment of the compensation shall be made by the Op within one month on receipt of the certified copy of the order.
Pronounced Dated: 20.11.2015 Sonia Bansal Neelam Gupta D.R.Arora Member Member President | |
