BEFORE THE DISTRICT FORUM (UNDER CONSUMER PROTECTION ACT, 1986), MEDAK AT SANGAREDDY

                   Present:Sri P.V.Subrahmanayma, B.A.B.L., PRESIDENT

Smt. Meena Ramanathan, B.Com., Lady Member 

Sri G. Sreenivas Rao,M.Sc.,B.Ed.,LL.B.,PGADR (NALSAR),

                                                           Male Member

Wednesday, the 5^th  day of January 2011

CC. No.  20 of  2010

Between:

Kasha Sujatha W/o Janardan,

Aged : 25 years, R/o Aksanpally (V),

Andole (M), Medak District.                                                   … Complainant

          And

M/s Kishan Agencies,

3-9-126/8, Hyderabad Road,

Medak Town & District, Andhra Pradesh.                               ….Opposite party

This case came up for final hearing before us on 21.12.2010 in the presence of Sri. G. Hanumantha Reddy, Advocate for complainant and opposite party in person, upon hearing arguments, on perusing the record and having stood over for consideration till this day, this Forum delivered the following

O R D E R

(Per Sri P.V. Subrahmanyam, President)

                   This complaint is filed Under Section 12 of Consumer Protection Act, 1986 to direct the opposite party to return Rs.1,85,000/- to the complainant and take back the tractor bearing number AP 23P 6107.

                   The averments in the complaint in brief are as follows:

1.                The opposite party is dealer of Escort FARMTRAC 45 tractors having their office in Medak town. The opposite party approached the complainant and advised her to purchase a tractor from them for her agricultural operations. The complainant is an innocent lady and did not have any knowledge about tractor, however she is interested in purchasing a tractor for her agriculture. Her agriculture operations are being supervised by her father kasa Narsimlu. The complainant has informed the opposite party that she agrees to purchase a tractor but she doesn’t have total amount for the purchase. Then the opposite party assured her that they would provide finance through ICICI Bank as they have tie-up with the said bank, however stated that the complainant has to pay some amount. The complainant agreed. The opposite party fixed the price of the tractor at Rs. 5,60,000/-, out of which the complainant paid Rs. 1,85,000/ to the opposite party and balance was arranged by the opposite party by way of finance through ICICI Bank under 10 installments. The opposite party delivered the tractor to the complainant on 24.12.2008, later it was registered on 07.02.2009 with registration No. AP 23 P 6107. From the date of purchase the tractor has been giving troubles and not functioning properly and the same was immediately intimated to the opposite party. The opposite party used to send some mechanic who used to repair. The opposite party has not furnished manual at the time of delivery of the tractor, to enable the complainant to run the tractor according to the manual. The complainant requested for manual, number of times, but in vain. The complainant there by unable to point out the problem which is caused, to run the tractor. The opposite party advised the complainant at the time of delivery of the tractor, to keep the tractor for 50 hours for cooling without putting any load. So far the tractor worked 300 hours only from the date of delivery till the date of filing of the complaint. From the beginning lot of mechanical problems occurred in the tractor due to which the complainant could not get her agricultural operations with the tractor. When ever the tractor gave trouble the complainant went to the office of the opposite party and the opposite party used to send some mechanic and get the tractor repaired. The attitude of the opposite party created mental tension to the complainant and caused damage for agricultural operations. The complainant requested the opposite party to take back the tractor and return the amount which was paid by her without any interest for which the opposite party neither agreed nor refused but has been dragging the matter on one pretext or the other, which amounts to deficiency in service due to which the complainant so far incurred damages of Rs. 2,00,000/- and mental agony. The complainant is ready to return the tractor to the opposite party on receipt of the amount paid by her. Hence the complaint.

2.                The opposite party resisted the claim of the complainant by filing a counter to the following effect:

The complaint is barred by limitation as the tractor was purchased on 24.12.2008 and the complaint is filed on 30.04.2010. As a matter of fact the said tractor is provided with warranty for a period of 12 months from the date of purchase, whereas the present complaint is initiated after expiry of the warranty period. As the complaint does not disclose any specific problems in the tractor there is no consumer dispute as such hence the complaint is liable to be dismissed. It is false to allege that opposite party approached the complainant and advised her to purchase their tractor for her agriculture and they assured her to provide financial assistance through ICICI Bank and that there is tie-up for them with the said bank. The opposite party admits that the complainant purchased tractor from them by paying the sale consideration and that they delivered brand new FARMTRAC 45 Model tractor bearing chasis no. T2109429 with engine No. E2111962 on 24.12.2008 and the complainant took delivery of the same. The opposite party has also furnished user’s manual to the complainant along with free service coupons and paid service coupons. The complainant purchased the tractor with the financial assistance provided by ICICI Bank and the opposite party is in no way concerned with the part payment of Rs,. 1,85,000/-. The allegation that the tractor started giving trouble from the date of purchase and not functioning properly and that she informed the same to the opposite party and the opposite party used to depute mechanic are all false. It is not their practice to depute any mechanic to any customer including the complainant and they never sent. The complainant did not complain any problem what so ever to the opposite party even at the time of attending free service of the tractor during the warranty period. The enquiry of the opposite party revealed that the complainant is incapacitated to re- pay the loan amount and in order to get rid off the same this complaint is filed with false and baseless allegations to gain something out of nothing. It is false to allege that the tractor could not be used due to mechanical problems. The complainant never complained any problem or defect in the tractor within the warranty period or even at any time prior to the filing of the complaint and therefore the allegation that the opposite party neither agreed nor refused to return the amount is false. The opposite party is not liable to pay any sum to the complainant much less Rs. 2,00,000/- as alleged. There is no deficiency in service or negligence on the part of the opposite party. The opposite party is doing business in tractors since past and not received any complaints as regards to rendering of service. The opposite party rendered utmost service to customers. The complaint is devoid of any merits and the same needs no consideration. The complainant may therefore be dismissed with exemplary costs.

3.                 In order to prove the respective contentions both parties have filed their evidence affidavits. Exs. A1 to A7 are marked on behalf of the complainant and Exs. B1 to B4 are marked on behalf of the opposite party. Both parties filed their written arguments. Oral arguments are submitted on behalf of the complainant. Perused the record.

4.                   The point for consideration is whether the complainant is entitled for the refund of the amount and for an order directing the opposite party to take back the tractor as requested in the complaint?

Point:

5.                The case of the complainant is that she purchased a tractor from the opposite party for Rs. 5,60,000/-, out of which she has paid Rs. 1,85,000/- to them and the opposite party arranged loan for the balance from ICICI bank with which they have tie-up and she has taken delivery of the tractor on 24.12.2008 but from the beginning the  tractor has been giving trouble and on every such occasion the opposite party used to send a mechanic who was rectifying the defects. As the tractor has not been properly functioning and giving mechanical troubles the complainant got Ex.A5 notice issued to the opposite party on 02.01.2009 through her advocate but the same was returned unserved with endorsement “addressee left”. The complainant therefore prays for an order against the opposite party to refund Rs.1,85,000/ - which was paid by her to them without interest and to take back the tractor. The defense of the opposite party is that the complaint is barred by limitation. It is contended by them that it is a fact that the complainant purchased the tractor from them and taken delivery on 24.12.2008 but it is not correct to say that the opposite party has tie-up with the ICICI bank and arranged loan. The opposite party further denied receipt of Rs. 1,85,000/- from the complainant. According to them the complainant purchased tractor with the aid of financial assistance from  ICICI Bank and their enquiry revealed that the complainant is incapacitated to re-pay the loan amount therefore to avoid the loan she has come forward with this complaint with false allegations therefore  prays to dismiss the complaint with exemplary costs.      

6.                The documents marked on behalf of both parties are as here under: Ex.A1 is delivery note, Ex.A2 is Insurance cover note, Ex.A3 is certificate of registration Ex.A4 is policy, Ex.A5 returned postal cover, Ex.A6 is office copy of notice and Ex.A7 is tractor surrender paper. Ex.B1 and B3 are Job cards and Ex.B2 and B4 are compliance reports.

7.                At the outset it is to be stated that the defense of  limitation raised by the opposite party is not sustainable because the complaint is well within time. As per Section 24-A of Consumer Protection Act, 1986 the prescribed period of limitation to admit a complaint is two years from the date of cause of action. Admittedly the tractor was purchased on 24.12.2008 and this complaint is filed on 30.04.2010 i.e. within two years, therefore this contention of the opposite party has no merit.

8.               The next contention is that the complaint is not maintainable as the warranty period of 12 months from the date of purchase of the tractor expired much before filing of the complaint. Either party has not filed any document to show as to how much is the warranty period. Hence this contention also does not sustain.

9.              The next contention of the opposite party is that the complaint of the complainant does not constitute any consumer dispute as no particular and specific problem is alleged in the complaint. It is true that the complaint does not show as to what problems are faced by the complainant while using the tractor. It is simply stated that from the date of purchase the tractor has been giving troubles and not functioning properly. But it is to be noted that this is not a civil court to consider such technicalities. Ex.B1 document filed by the opposite party shows that on 05.02.2009 i.e. after one month and odd after the purchase the tractor was taken to the opposite party and the opposite party has collected Rs.2,000/- from the complainant towards repairs and Ex.B2 shows that the defects were rectified. Ex.B3 also shows that about one week there after i.e., on 11.02.2009 again the tractor was taken to the opposite party complaining two problems 1). Radiator boiling and 2). Engine Heat. As seen from Ex.B4 these problems are also rectified. Therefore from the documents filed by the opposite party themselves, which are marked as  Exs.B1 and B4, it is understood that within two months after purchase of the tractor, twice the tractor was taken to the opposite party for repairs. When the complainant purchased a new tractor from the opposite party and when it has necessitated her to take the tractor to the opposite party twice within two months for repairs, this itself speaks some inherent defects in the tractor within the alleged warranty period. It is not known whether such defects are of serious nature or not, because there is no evidence in that regard.

10.                    The contention of the complainant is that when Ex.A5 notice was sent to the opposite party they have managed the post man and avoided receipt of notice therefore the said notice was returned un served and in the complaint also very same address of the opposite party is furnished. This is denied by opposite party stating that their business premises was shifted from the address to which Ex.A5 was sent. According to them even the notice sent by this forum to the same address was not served on the opposite party and coming to know of the news paper publication the opposite party entered its appear in this case therefore the contention of the complainant that the opposite party managed the postman and avoided receipt of notice is false. As verified from the record, notice sent by this forum to the opposite party was returned with endorsement “in sufficient address” therefore notice of the opposite party was published in news paper by way of substituted service and thereafter the opposite party entered their appearance. Hence the contention of the complainant in this regard has no merit.

11.                       The complainant has not produced any evidence to show that the opposite party approached her and on their request she purchased tractor from them as she was interested to purchase tractor. The opposite party denied their approach to the complainant. The opposite party also denied the contention of the complainant that users manual was not given to her. According to them it was given. The contention of the opposite party that the complainant  never complained of any mal function or improper or non function of the tractor even at the time of attending free service during the period of warranty. This contention is disproved by their own documents Exs.B1 to B4 as already stated above.

12.             During arguments the learned counsel for the complainant contented that the tractor was taken back after filing of the complaint, therefore the complainant restricts  her claim for return of the amount of Rs. 1,85,000/- paid by her. In this connection the learned counsel has referred Ex.A7 which shows that the complainant has surrendered the tractor to ICICI bank on 02.06.2010. This contention of the complainant’s advocate together with Ex.A7 lend support to the contention of the opposite party that the complainant is incapacitated to pay the loan amount.

13              The prayer of the complainant in the complaint is to direct the opposite party to refund Rs.1,85,000/- to her and to take back the tractor. The opposite party denied receipt of RS.1,85,000/- from  the complainant. The complainant has not produced any evidence that she has paid Rs. 1,85,000/- to the opposite party. Their contention is that the entire sale amount of the tractor was financed by the ICICI bank and the complainant has not paid any amount to them. Therefore it is held that the complainant is not entitled to an order for refund of Rs.1,85,000/- from the opposite party. As the complainant is not in possession of the tractor, the question of direction to the opposite party to take back the tractor from her does not arise. It is therefore held that the complainant is not entitled to the reliefs prayed in the complaint. The point is answered against the complainant.

14.           In the result the complaint is dismissed. No costs.

                 Typed to dictation, corrected and pronounced by us in the open forum this  5th   day of January, 2011.

          Sd/-                                      Sd/-                                             Sd/-

  PRESIDENT                       LADY MEMBER                            MALE MEMBER

APPENDIX OF EVIDENCE

Witness examined

For the complainant :                                             For the opposite party:

-Nil-                                                                               -Nil-

DOCUMENTS MARKED

For the  complainant :                                            For the opposite party:

Sd/-                                                                 PRESIDENT

Copy to

1. The Complainant                       copy delivered to the Complainant/
2. The opposite party                           Opp.Party On ______________
3. Spare copy

Dis.No.                 /2011, dt.