Haryana

Karnal

354/2013

Anil Kumar - Complainant(s)

Versus

M/s Haryana Automobiles - Opp.Party(s)

R.K. Kamboj

10 Oct 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL. 

                                                     Complaint No.354 of 2013

                                                     Date of instt.: 13.08.2013

                                                      Date of decision:10.10.2017

 

Anil Kumar son of Shri Isham Singh resident of village Shamgarh Tehsil Nilokheri District Karnal.

 

                                                                   ……..Complainant.

                                        Vs.

1. Haryana Automobiles authorized dealer of Swaraj and Mahindera & Mahindera, outside Meeran Ghati Chowk, Karnal through its partner.

2. Ashok Leyland third floor, SCO 234, Sector-12, City Centre Karnal through its Manager.

3. Mahindera & Mahindera Ltd. Farm Equipment Sector Swaraj Division, Chapparcheri P.O. Landran Tehsil S.A.S. Nagar (Mohali) through its Manager.

 

                                                               ………… Opposite Parties.

 

                  Complaint u/s 12  of the Consumer Protection Act.

 

Before      Jagmal Singh……….President.

                Ms. Veena Rani…….Member

                Sh.Anil Sharma…….Member.

 

Present:-  Sh. R.K. Kanajia Advocate for the complainant.

                    Sh. Vishal Kundi Adv. for the Opposite parties no.1&2.

                    Sh. T.L. Garg Advocate for opposite party no.3.

                  

                    (JAGMAL SINGH, PRESIDENT)

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that on 31.8.2012 he purchased combine harvester of Mahindera and Mahindera from opposite parties no.2 and 3 for an amount of Rs.16,51,075/- for his livelihood as he was having land in village Shamgarh as well as in Madhya Pradesh. He purchased the said harvester after getting loan from Punjab National Bank Nilokheri and mortgaged his land with the bank. Since the day of purchase combine harvester was not running smoothly. There was a defect in the said combine harvester which was not curable as the combine is giving back pressure. He made many complaints in that regard to the opposite parties. Engineer of the opposite parties made best efforts to rectify the defect, but to no effect. Due to the back pressure the combine was consuming more oil and problem of overheating was also due to back pressure.  He got services from the authorized dealer of the company time to time. The dealer cleaned the engine radiator operator system, set the fitting, air filter clean, diesel pipeline clean, fan belt, Engine start and load check up. But the engine was not properly working, it gives difficulty in driving the combine harvester and again he got checked the engine from authorized dealer at Panipat. At that time dealer gave report that the engine is giving high back compressor and found blow-by, and he suggested to him to send the engine at workshop for necessary repair, but the engine was not repaired properly. He also used the combine harvester at his field in Madhya Pardesh and the same problem occurred.  The authorized dealer of Ashok Leyland and the engineer of the company were called from Indore(M.P) in the field and he checkup the harvester and issued the service report mentioning therein that “Engine pahle din se he blow by de raha hai” It means that from the first day of purchasing the combine harvester was giving back pressure and blow by which was not curable and in the mechanic language is a manufacturing defect which cannot be cured. He requested the opposite parties several times for replacement of the Engine with new one because the combine harvester was within warranty period, but opposite parties did not give any heed to the request of complainant. Such acts and conduct on the part of the opposite parties amounted to deficiency in service, which caused him mental pain, agony and harassment apart from financial loss.

2.             Notice of the complaint was given to the opposite parties, opposite parties no.1 and 2 put into appearance and filed written statement raising preliminary objections regarding jurisdiction; complaint is bad for mis-joinder of party; there was no deficiency in service on the part of the opposite parties no.1 and 2; maintainability  and cause of action. On merits, it has been submitted that the combine harvester used by the complainant for commercial use and running the business for profits and gains. He and his family members were having many other combines/harvesters and operate them on rental basis for cutting the harvest of other farmers in Punjab, Haryana and Madhya Pradesh. He has also employed many other persons to work under him. The complainant has not followed the terms and conditions of the service manual. No service till date has been got done by the complainant from the authorized service centre of opposite party no.2 within the stipulated period/mileage. Another condition for the warranty to be applicable the use of genuine spare parts and consumables such as engine oil etc. This condition was also not complied with. Engine was operated without following the due procedure and norms. As per the case of the complainant the first service was got done on 19.4.2013 i.e. after a period of eight months. Infact the complainant was running the combine after removing the hour meter cable which resulted in recording of only 250 hours of use. There was no service record during that eight months. The engine was found clogged with dust as it was used in dusty condition after removing the air filter. This act itself is in the violation of the normal operating procedure and voids the warranty. Thus, whatever problem the complainant faced was because of his own act and misconduct. Secondly, when the combine was inspected on 16.5.2013 the RPM cable which records the hours of use of the combine was found broken. Not only this after due checking the complainant was advised to get the engine properly serviced by bringing it to the workshop because it has started giving blow by because of improper use and non-maintenance. As per the condition of the engine it was also remarked that the engine seems to have run around 1000 to 1500 hours till date. The complainant has himself not taken proper care of the combine. Hence there was no deficiency in service. The other allegations made in the complaint have been denied.

3.             Opposite party no.3 filed its separate written statement on the same footing as filed by opposite parties no.1 and 2. On merits, all the allegations leveled in the complaint are denied and prayed for dismissal of the complaint.

 4.            Complainant tendered into evidence his affidavit Ex.CW1/A and documents Ex.C1 and documents Ex.C2 to Ex.C13 and closed his evidence on 30.5.2014.

5.             On the other hand, opposite parties tendered into evidence affidavit of Hemant Bhasin Ex.OP2/A and documents Ex.OP2/B to Ex.OIP2/F and closed his evidence.

5.             We have heard the learned counsel for the both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

6.             From the pleadings and evidence of the case, it is clear that the complainant has purchased the combine on 31.8.2012, but the first service was got done by the complainant on 19.4.2013. The complainant has not placed on the file any service record before 19.4.2013 which means that there was no problem in the combine before 19.4.2013, therefore, the contention of the complainant that the combine was giving problem from the very  first day of its purchase has no force. Even from the service record Ex.C7 dated 19.4.2013, it is clear that there was no problem in the combine because only necessary service was done and thereafter the engine start and on load checkup it was found o.k.  Therefore, there was no problem in the combine upto 19.4.2013. Further the  Field Service Report dated 16.5.2013, the copy of which is Ex.C8,  shows that the customer made complaint which is mentioned in the column of the customer complaint as “Hard starting and high back compression”. The observations/Analysis of the service provider are  as “Attended the machine for said purpose start the engine and found engine start with half crank. Check for high back compression and found blow by is more than limit further check for air filter etc. and found dust in intake manifold and showed it to customer. Customer not availed any service from authorized dealer. Asked him to provide FSR report/document of service if they have. Requested the customer to send the engine to workshop for necessary repair, Engine runs around 500-1000 hours.” From this it is clear that on starting the engine, it was found that the engine start with half crank. No doubt the blow by was found more than limit for which the customer was asked to provide FSR report/document of service if they have and the customer was further requested to send the engine to the workshop for necessary repair. But the complainant has not produced any such evidence on the file that he sent the engine to the workshop for necessary repair. It is pertinent to mention here that Ex.C9 and Ex.C10 did not bear any date. No doubt in Ex.C9, the customer gave his remarks that engine is giving blow by from the first day. But these remarks are baseless because as already stated above, there was no problem in the engine upto 19.4.2013. Even, thereafter the service engineer of Indore requested the complainant to send the engine to the workshop for necessary repair, but the complainant has failed to produce any such document on the file from which it can be proved that the complainant had sent the engine or the combine in the workshop. From these facts, it is clear that the complainant is himself is at fault for not sending the combine in the authorized workshop of the opposite parties for repair. When the complainant had not taken the combine in the authorized workshop of the opposite parties then how the defect, if any, can be removed from the engine or the combine by the opposite parties. Therefore, the complainant cannot blame the opposite parties for the lapses on his part. In these circumstances of the case, we are of the considered view that the complainant has failed to prove any deficiency in service on the part of the opposite parties.

7.             As already stated above, the complainant has purchased the combine harvester on 31.8.2012 from opposite party no.3 for an amount of Rs.16,51,075/-. From the sale certificate Ex.C5 and Initial Certificate of road worthiness Ex.C6, it is clear that the combine in question was purchased by the complainant from the area of District S.A.S Nagar (Mohali). Further from service record Ex.C7 dated 19.4.2013 and Ex.C8 dated 16.5.2013, it is clear that the complainant got the service of the combine at Panipat. Similarly, from Field Service Reports Ex.C9 and Ex.C10 and delivery challan Ex.C11, it is clear that same are relating to the area of Indore (M.P). So, from these documents, it is clear that neither the combine in question was sold nor any service was got done in the territorial jurisdiction of this Forum. Hence, in these circumstances, we are of the considered view that this Forum at Karnal has no jurisdiction to entertain and try the present complaint.

8.             Thus, as a sequel of above discussion, we find no merits in the complaint and the same is hereby dismissed on merits as well as on the ground of territorial jurisdiction. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 10.10.2017

                                                               

                                                                 President,

                                                District Consumer Disputes

                                                Redressal Forum, Karnal.

 

 

                        (Veena Rani)                     (Anil Sharma)

                          Member                              Member