Haryana

Ambala

CC/16/2015

Avtar Singh - Complainant(s)

Versus

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

Parvinder Singh

26 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

                                                          Complaint case no.        : 16 of 2015

                                                          Date of Institution         : 19.01.2015

                                                          Date of decision   : 26.09.2017

Avtar Singh son of Sh. Harveer Singh resident of Village Panjola, Tehsil and District Ambala.

……. Complainant.

1. M/s Kamal Automobiles, Authorized Dealer, Mahindra Gurjarat Tractors, Hissar Road, Near Ghunghat Farm, Ambala City (Haryana). Through its proprietor Mrs. Kamal.
2. Mahindra Gujarat Tractors Limited (Mahindra), Near Vishav Mitiri Railway    Over Bridge, Vishav Mitiri Vodabara, Gurjarat, 390011, through its General        Manager.

 ….…. Respondents.

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER                   

                   MS. ANAMIKA GUPTA, MEMBER       

Present:       Sh. Parvinder Singh, counsel for complainant.

                   Sh. Puneet Sirpaul, counsel for OP No.2.

                   OP No.1 exparte.

ORDER:

                   In nutshell, brief facts of the present complaint are that the complainant had purchased a tractor-Model Hindustan 60 HP bearing Engine No.H60JD0033 from OP No.1 vide bill No.4 amount of Rs.6,35,000/- dated 09.02.2014 and at the time of its purchase OP No.1 has not issued the form No.22 to complainant for which complainant was not able to get the registration number from the competent authority. Further submitted that in the last week of February, 2014 complainant was ploughing his field with said tractor soon after at once the engine of the said tractor itself and its engine nozzle was not working properly due to which it stop working and the complainant at once rushed to the Agency of OP NO.1 who in turns checked the defects of said tractor and finds that the tractor got the manufacturing defect but his thing was concealed by OP No.1 and intentionally OP No.1 has not issued the Job sheet to this effect and asked the complainant to take the tractor back within a day or two. Further submitted that the mechanics of OP No.1 on asking of complainant told him that they had repaired the diesel pump as it is not working properly and assured complainant that now it will not create any problem in further and thereafter, the complainant asked about the Form 22 but again OP No.1 has made the lame excuse that the form will be provided as soon it will be received by OP No.2. Complainant further submitted that in the month of March, 2014, he again faced the problem of leakage in the nozzle of pump in the tractor in question and the same had again repaired by the OP No.1. Further submitted that in the month of April 2014, the complainant was going to market for the purchase of the seeds at once and the meter of the tractor also stop working and the same has been changed in the month of April 2014 by OP No.1. Further submitted that in the month of July, 2014 complainant was going to fields for his working in the mean time the brakes and clutches plates of tractor started missing problem due to which the tractor is stop at once with a jerk which was again complaint to OP No.1 who in turns told complainant that the clutches plates are not available with them and same will be imported from Vadodara, Gujarat i.e. from OP No.2 and the tractor of complainant remain with them for a 15 days but needful was not done after 15 days also therefore complainant brought the tractor to authorized dealer of OP No.1 and get the tractor repaired again and an amount of Rs.7000/- has been spent on the same. Further complainant has expended almost an amount of Rs.15,000/- till date due to repairs, visiting’s and other reasons besides this complainant plough agriculture fields on rented tractor for which he expended huge amount and he suffered a loss of Rs.1,00,000/-. Further submitted that during the working of the said tractor new problem originated from it and complainant found that small cracks in the whole body of the tractor and it got badly damaged due to the same and the complainant requested to both the parties for replacing of the tractor in question as it was totally manufacturing defects in the said tractor i.e. during the span of seven months only the tractor was facing Engine, Nozzle, Steering, Clutches, Body damaged problem but both the parties are not listening to the request of the complainant. Presently, in the month of Sep 2014, the said tractor is again under repair for the defect of Engine and body damaged and now till date form No.22 was not issued by both the parties. Hence, the present complaint.

2.                OP No.2 filed his written statement and submitted that at the time of sale of tractor, OP No.2 issued and handed over form 22 and form F to the OP NO.1, sho is turn ha to hand over it to a retail customer. It is the complainant that the OP NO.1, who were parties to the contract of sale and purchase of the tractor in question, who knows the best reasons for not handing over the Form 22 at that time and the legal relationship by and between this OP and the OP NO.1 was on Principle to Principle basis. It is also pertinent to note that the complainant had paid consideration to the OP No.1 and OP No.1 had in turn issued bill No.4 to the complainant. Further submitted that as a matter of fact whenever any minor problem occurred the same has been repaired by the OP No.1 and as per the warranty policy of this OP which is limited and conditional in nature is expressly stated in the booklet. So, OP No.2 has prayed for dismissal of the present complaint.

3                 To prove his version complainant tendered his affidavit as Annexure C-X along with documents as annexure C-1 to C-10 and close his evidence. On the other hand, counsel for the OP No.2 has also tendered affidavit as Annexure R-X and close his evidence. Counsel for OP No.1 has already exparte v.o.d. 20.03.2015.

4.                We have heard counsel for the parties and carefully gone through the case file.

5.                Admittedly, complainant has purchased the tractor in question 09.02.2014 as per the invoice Annexure C-1 for amounting to Rs.6,30,000/- and OP No.1 has issued the sale certificate Annexure C-3 i.e. Form 21 but the complainant take the objection that OPs has not issued the Form 22 as the complainant was not able to get the registration number from the competent Authority.

                   On the other hand, OP No.1 i.e. dealer proceeded exparte and could not rebut the above said version regarding not providing the Form 22 but the OP No.2 has averted that at the time of the sale of tractor by OP No.2 has issued and handover the form No.22 and Form F to the OP No.1 and further it is a responsibility of OP No.1 to handover the above said forms to the complainant and  reason best known to the OP No.1 and relation between the OP No.1 and OP No.2 was for principle to principle basis. So, the OP No.2 is not in fault.

                   The version of the complainant duly supported by sworn affidavit and OP No.1 has not rebutted the contention of the complainant as not providing the Form No.22. Hence, the OP No.1 is deficient in service as non-providing of the Form No.22.

                   Another contention of the complainant is that the tractor in question was started giving problem as such leakage and diesel entered in the engine parts of the tractor, leakage of the nozzle of pump, meter of the tractor spot working, brakes and clutches plates of tractor started missing problem, steering clutches, body damaged problem within its warranty period and same could not be rectify by the OPs. To prove the above said defect in the tractor in question, the complainant moved an application to get the vehicle inspect and same was allowed by this Forum v.o.d. 07.07.2015 and directed to the Principal of Govt. Polytechnic, Ambala City v.o.d. 07.07.2015 to appoint an Automobiles Engineer/Expert person dealing with the problems of the automobiles. Accordingly, Sh. Vijay Singh, Lecturer, Automobiles Engineer was appointed as Local Commissioner who submitted his report on 30.07.2015 whereby he has pointed out that:

1.                Power steering system was not working properly due to defective spool valve assembly. As the spool valve is not working as per intended design function, it is a manufacturing defect.

2.                Engine was producing abnormal noise while accelerating. Power available was not at par with the load requirement. It seems that diesel pump assembly is defective which can be checked at diesel pump testing facility. If it is reported defective, the pump has manufacturing defect.

3.                Gear shifting was very hard due to defective clutch. As the clutch is not working as per indented design function, it has manufacturing defect.

4.                Body of the vehicle had developed cracks at two locations. The nature of cracks does not look like as developed by any impact. As such it is a manufacturing defect.

                   Perusal of the case file reveals that the present complaint filed on 19.01.2015 and notices through registered A.D. were issued to the OPs but after elapsing of mandatory period of the 30 days notices did not received back either served or unserved, therefore, they were proceeded against exparte v.o.d. 20.03.2015. Thereafter, after leading evidence, the complainant closed the same on 21.09.2015. During the proceedings of the complaint, an application to get the vehicle inspected from an Expert by appointing a Local Commissioner which was allowed by this Forum v.o.d. 07.07.2015 and directed to the Principal of Govt. Polytechnic, Ambala City v.o.d. 07.07.2015 to appoint an Automobiles Engineer/Expert person dealing with the problems of the automobiles and Accordingly, Sh. Vijay Singh, Lecturer, Automobiles Engineer was appointed as Local Commissioner who submitted his report on 30.07.2015. Meanwhile, the OP No.2 has also joined the proceeding of the present case in compliance of the order dated 19.10.2015 of Hon’ble State Consumer Disputes Redressal Commission, Haryana and resisted the present complaint. After joining of the proceedings of the complaint as well as filing reply by the OP No.2, the complainant closed his evidence on 06.01.2017 by submitting that the evidence already led by him be read his evidence after joining the proceedings OP No.2. Thereafter, the OP No.2 closed his evidence on 14.06.2017. Since, the OP No.2 had closed his evidence after closing the evidence of the complainant, therefore, it was the duty of the OP No.2 to rebut the report of the Local Commissioner by summoning of the Local Commissioner for cross-examination, at the time of leading the evidence because after joining the proceedings as well as leading its evidence, the report made by the Local Commissioner was very much in its knowledge. It is not understandable as to why the OP No.2 kept mum for such a long period without resisting the report of the Local Commissioner. Since, the Local Commissioner was appointed by the order of this Forum, therefore, report of the Local commissioner wherein it has been mentioned that the vehicle in question was having manufacture defect cannot be brushed aside on the ground that the vehicle was inspected at the back of the OP No.2. We have gone through the report of Local Commissioner which clearly shows that the vehicle in question was having manufacturing defect. So, it is a crystal clear case of deficiency in service as well as unfair trade practice on the part of the Ops. It is clear that the vehicle in question become defective firstly in the month of 2014 and further in the month of July 2014, therefore, there is no question of deducting the depreciation of the vehicle.

5.                In view of above discussion, the present complaint is hereby allowed with costs which is assessed at Rs.5000/- and Ops are directed to comply with the following direction within thirty days from receipt of copy of the order:-

(i)      The OP No.2 is directed to replace the vehicle in question with new one of the same Model and if the same model is not available then to refund the cost of the vehicle to the tune of Rs.6,35,000/- (Annexure C-1) within stipulated period, failing which the amount would carry interest at the rate of 9% per annum for default period subject to handing over the old vehicle alongwith all documents given by OP No.1 at the time of purchase of the vehicle to the OP No.2 by the complainant.  

                   Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

Announced on :26.09.2017                                  (D.N. ARORA)

                                                                                       President

 

    

     (PUSHPENDER KUMAR)

                                                                                            Member

 

 

              (ANAMIKA GUPTA)

                                                                                            Member