West Bengal

Paschim Midnapore

CC/99/2016

Nepal Bhuniya - Complainant(s)

Versus

M/S-Dandapat Auto Centre & another. - Opp.Party(s)

Poulomi Kala(Bera)

12 Feb 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

     Bibekananda Pramanik, President,

     Pulak Kumar Singha, Member. 

and 

   Sagarika Sarkar, Member.

 

Complaint Case No.99/2016

 

             Nepal Bhuniya, S/o-Sri Ranjit Bhuniya, Vill.-Dhamkuriya, P.O. & P.S.-Chandrokona,

             District - Paschim Medinipur, PIN-721201.   

                                                                                                                    ………..……Complainant.

                                                                              Vs.

1. M/s-Dandapat Auto Centre, Prop. Sukumar Dandapat, Vill-Raghunathgarh (Chandimata Cold Store), P.O. & P.S.-Chandrakona, Paschim  Medinipur
2. The State Head, Mahindra Gujarat Tractor, 7-Kyd Street, 4^th Floor, Kolkata-700 016
3. The State Head, Mahindra & Mahindra Financial Service Ltd., Infinity Benchmark, 8^th Floor, Sector-V, Salt Lake City, Kolkata-700091.

                                                                                                 .....……….….Opp. Parties.                                                    

              For the Complainant: Mrs. Poulomi Kala (Bera), Advocate.

             For the O.P.                : Mr. Dipankar Pati & Subrata Bikash Das, Advocate.

                                                           

                                                            Date of filing : - 18/07/2016.

Decided on: -12/02/2018

                               

ORDER

                          Bibekananda Pramanik, President –This consumer complaint u/s 12 of the C.P. Act has been filed by the complainant Sri Nepal Bhuiya against  the O.Ps.,  named above, alleging deficiency in service.

              Complainant’s case, in brief, is as follows:-

              Complainant is the registered owner of a Saktiman Tractor vides Registration no.WB-33-C/4930. He purchased the said tractor from O.P. no.1 and the O.P. no.2 is the manufacturer of the said tractor. The complainant is an unemployed person and

Contd…………………..P/2

 

( 2 )

for self employment, he purchased the tractor in the month of February, 2015 after taking financial loan of Rs.5,00,000/- from the O.P. no.3-Mahindra & Mahindra Financial Service Ltd. It is alleged that from the very beginning of purchase, the function of the pump of the tractor was not smoothly functioning  and the starting system of the tractor also did not function properly for which the movement of the tractor has been kept in a standstill condition. It is alleged that the O.P. No.1 did not make over owner’s manual book at the time of purchase and also did not provide the servicing facility of the tractor. Since the vehicle was lying allmost   idle due to such  defect, so the complainant had to get the vehicle in receiving  condition by repairing the same from Chandrokona Diesel Service at Santbankura under P.S.-Gaharbeta and for such repairing, he had to spend Rs.25,000/-. Complainant therefore sent a letter to O.P. No.2 by registered post letter on 06/05/2016 and on receipt of the said letter, O.P. no.2 deputed an Automobile Engineer for inspecting the vehicle and the said Automobile Engineer stated that trouble caused in running the vehicle was for manufacturing defects and he assured that the said defect will be cured within seven  days by replacing genuine spare parts but no repairing work was done by the O.P. no.2  till today. As the tractor has gone out of order for a long time, so the complainant was unable to repay the installment of loan to the O.P. No.3 and he intimated the  O.P. no.3 regarding such cause of default  in payment of loan amount but the concerned employee of the O.P. no.3 is trying to repossess the  vehicle forcibly  from the complainant.  The complainant has failed  to utilize the tractor in cultivation work during winter season and rainy season and he therefore sustained financial loss of Rs.2,00,000/-. Hence the complaint,  praying for directing the O.P. no.1 to pay Rs.25,000/- towards the cost of repairing of the fuel pump, directing the O.P. no.2 to pay Rs.2,00,000/- for loss of income suffered by the complainant due to manufacturing  defect and to get the vehicle repaired or replace and for direction to the O.P. no.3 not to repossess  the vehicle from the custody of the complainant and for an award of litigation cost against the O.Ps.

     All the three O.Ps. have contested this case by filing there separate written version.

     Denying and disputing the case of the complainant, it is the specific case of the O.P. no.1  that this forum has no jurisdiction to entertain the dispute as the tractor in question is a commercial vehicle and it is used for commercial purpose.  It is stated that the O.P. no.1, being dealer of O.P. no.2, sold the tractor and spare parts thereof to the complainant on 16/09/2014and  the complainant got the same registered with R.T.A., Midnapore in the month of February, 2015 and at the time of sale, the complainant was provided with a ‘Farmer’s Kit” and by using two service coupons, the complainant availed 1^st free service on 16/10/2014 and 2^nd free service on 20/11/2014.  Thereafter the

Contd…………………..P/3

 

( 3 )

complainant never availed the rest three free services within the stipulated time  and on the contrary he ran the tractor negligently. It is stated that the fuel pump of the vehicle was manufactured by a  third party named “Bosch” and after receiving the complaint regarding alleged improper functioning of the fuel pump, the matter was immediately referred to “Bosch” who rejected the claim on 19/11/2015 on the ground that the customer used contaminated fuel. It is also stated by the O.P. no.1 that although the complainant was provided with operator’s manual but he did not follow it’s user and used the vehicle roughly and negligently and without proper maintenance and servicing. It is also claimed that O.P. no.1 was never in fault in providing free services and as such there was no deficiency in service on their part.  

          Denying and disputing the case of the complainant it is the specific case of the O.P. no.2 that the complainant has not produced any  authenticated proof of technical report to show that the disputed tractor has any manufacturing defect as alleged in the petition of complaint. After receiving the letter dated 06/05/2016 sent by the complainant, the O.P. no.2 deputed one of its  service executive to check the disputed tractor and during such checking, it was found that the tractor was in running condition except steering arm found broken/cracked which was happened due  to misuse of the tractor. In spite of that the complainant was asked to bring the tractor to the workshop of O.P. no.1 but the complainant did not do so. Instead of doing so, he carried out repairing of the vehicle in an unauthorized workshop which was in clear cut breach of warranty policy. It is stated that the service executive of this  O.P. no.2 never stated that there was any manufacturing defect or it will take time of 7 days  for replacing spare parts with original parts. The warranty policy of the O.P. is limited and conditional in nature and therefore the O.P.  has rejected the claim of the complainant to provide spare parts of steering arm on free of cost.  Further according to the O.P. no.2, the complaint has not  come  with clean hands and with a clear intention to cover up his own fault in payment of loan amount to O.P. no.3,   the present complaint has been filed.  O.P. no.2 therefore claims dismissal of the case with cost.

        It is the specific case of the O.P. no.3, as made out in the written version that the complainant was provided with financial loan of Rs.5,00,000/-  for purchasing the vehicle in question and he also  executed a loan agreement with O.P. no.3 on 11/02/2015.  As per terms of agreement of loan, a sum of Rs.6,99,800/- was to be repaid  by the complainant in 46 periodical installments starting from 11/02/2015 and ending  on 05/11/2018. As on 22/11/2016, the complainant was  supposed to pay 22 loan installments but  he has actually paid 11  installments and thereby  he has defaulted in making payment of Rs.1,90,224/-. As per arbitration clause, the complainant has agreed to refund all disputes to the

Contd…………………..P/4

 

( 4 )

arbitrator. Allegations made in the complaint are against the O.P. nos. 1 and 2 and this  O.P. no.3, being financer, has no obligation regarding such dispute. There being no deficiency in service and the complainant being a regulator defaulter, the petition of complaint deserves to be dismissed.

      To prove his case, the complainant has examined himself as PW-1 by tendering a written examination-in-chief and during his evidence, few documents were marked as exhibits 1 to 9 respectively and during his cross-examination by O.P. no.2, some were marked as exhibit A , B & B/1 respectively.

     On behalf  of O.P. no.1 one Soumen Roy  was examined as OPW-1 by tendering a written examination-in-chief and during his  evidence, few documents were marked exhibit C to I respectively.

     One Prabir Kumar Singha was examined as OPW. no.2 on behalf of O.P. no.2 and during his evidence, documents were marked as exhibits J to R respectively. During his cross-examination of OPW-2 by O.P. no.1, one document was marked as exhibit-S.  

             

                                                                 Points for decision

1. Is the case maintainable in it’s present form and prayer ?
2. Is the complainant a consumer of the O.Ps. ?
3. Is there any manufacturing defects of the disputed tractor ?
4. Is there any deficiency in service on the part of the O.Ps.?
5. Is the complainant entitled to get the reliefs, as claimed ? 

                   

Decision with reasons

           Point nos.1 & 2 :

          Maintainability of this case has been questioned by the O.P. no.1 on the ground that the disputed tractor was purchased for commercial purpose and therefore the  complainant is not a consumer under the C.P. Act. Admittedly the tractor in question was registered as commercial purpose but the complainant has made out a case that he, being an unemployed person,  purchased the disputed vehicle for earning his livelihood by way of self employment. He has tendered his evidence supported by affidavit thereby stating                    inter alia that being an unemployed person, he purchased the vehicle for earning his livelihood by way of self-employment. It appears from the cross-examination of the complainant that none of the O.Ps. have put any question to the complainant regarding the purpose of purchasing of vehicle for his self-employment and therefore the said case of the complainant remained unchallenged.  Since the complainant has made out a case that he, being an unemployed person, purchased the vehicle for earning his livelihood, so in view

Contd…………………..P/5

 

( 5 )

of explanation of sec. 2(i)(d) of the C.P. Act, the complainant is a consumer under the C.P. Act.  

  These two points are accordingly decided in favour of the complainant.     

          Point no.3:-

               In his petition of complaint, the complainant has made out a case that from the very beginning of purchase, he is facing trouble in running the disputed tractor due to manufacturing defects. The O.P. no.1 & 2 both have denyed that there was any manufacturing defect in the vehicle in question. Since the O.P. no.1 & 2, the dealer and manufacturer of the vehicle, have denied alleged defect in tractor, so it was necessary for the complainant to get the tractor examined by an expert and then to file affidavit along with opinion of expert to  prove defects as alleged by him. No such expert opinion has been filed by the complainant in this case and there is also no prayer by the complainant before this Forum for getting the disputed vehicle examined by any technical person. That having not been done, the complainant has failed to discharge the onus placed upon him and it is therefore held that the complainant has failed to prove the allegation of manufacturing defects in the vehicle.

This point is therefore decided in the negative and against the complainant.

           Point no.4:-

It is the specific allegation of the complainant that after purchase of the vehicle, the O.P. no.1 did not provide any free service to the vehicle  and thereby  the O.P. no.1 has caused deficiency in service. As against this, it is the case of the O.P. no.1, as made out in the written version, that the complainant was given “Farmer kit” and by using two service  coupons, the complainant availed first free service on 16/10/2014 and second free service on 20/11/2014. Although the complainant was entitled to get other three free services of the tractor, but he never availed such three rest free services within the stipulated period. To prove their such case,  the O.P. no.1 has produced original coupons of first and second free services of the vehicle in question and those were marked as exhibit-B and B/1 respectively during the evidence of  OPW-1. There is no denial on this score on behalf of the complainant during the cross-examination OPW-1.  These two documents (exhibit-B and B/1) which bear the signatures of the complainant belied the case of the complainant that the O.P. no.1 did not provide free servicing to the vehicle.  Complainant has given no explanation as to why he did not avail rest three free servicing of the vehicle. In that view of the matter and considering the above documentary evidence (exhibit-B and B/1)  we are of the view that the complainant’s allegations regarding deficiency in service is out and out false and this point is therefore answered in the  negative and against the complainant.

Contd…………………..P/6

         

                                                                                          ( 6 ) 

           Point no.5:-

In view of our above findings under points nos. 3 and 4, the complainant is not entitled to get any relief as prayed for.

All the points are accordingly disposed of.

In the result, complaint case fails.            

                                          Hence, it is,

                                                Ordered,

                           that the complaint case no.99/2016  is dismissed on contest but in the circumstances without cost.

                         Let plain copy of this order be given to the parties free of cost.

          Dictated and Corrected by me

                    

                         President                           Member                      Member                       President

                                                                                                                                      District Forum

                                                                                                                                   Paschim Medinipur