F.A.No.1333/2008 against  C.C.No.13/2008, DISTRICT FORUM-II,Tirupati.         

Between

J.Nathan , S/o.K.Rosaiah,

Hindu, age 45 years , Agriculturist ,

Karakollu Village & Post Thottambedu Mandal,

Chittoor Dist.                                                       …Appellant/

                                                                            Complainant 

        And

1.The Managing Director,

    Mahendra & Mahendra Limited,

    Farm Equipment and Sector  S & Co.,

    E.P.U Buildings , Gate No.4 Akuli Road,

    Kendiwali East, Mumbai-400 101.

2. Mahendra & Mahendra Financiers Limited,

     Rep. by its Manager D.No.20-1-113,

     CD TML Bye-pass Road, Tirupati 517 501.

3. Vijay Tractor Agencies,

     Rep. by its Proprietor, Authorised dealer for

     Mahendra  & Mahendra Limited Farm Equipment,

     Plot No.99, Auto Nagar, Renigunta Road,

     Settipalli Post, Tirupati – 517 507.                      …  Respondents/

                                                                               Opp.parties 

Counsel for the Appellant     :   Mr.M.Ram Gopal Reddy

Counsel for the respondent   :   Mr.Devashish Dash-R1

                                            Mr.Valluri Mohan Srinivas-R2

                                            Mr.M.Aravind-R3

 QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT

                                        AND

                 SMT.M.SHREESHA,  HON’BLE MEMBER

 TUESDAY, THE TWENTY SEVENTH DAY OF SEPTEMBER,

     TWO THOUSAND ELEVEN.

         (Typed to dictation of   Smt.M.Shreesha, Hon’ble Member)
                                                ****

Aggrieved  by the order in   C.C.No.13/2008  on the file of District Forum-II, Tirupati,  the complainant preferred this appeal. 

The brief facts as set out in the complaint are that the opposite party no.1 is the manufacturer  of   Mahendra Tractors, opp.party no.2  is the financier financing  for purchase of  Mahendra Tractors under H.P.Agreements and the third opposite party is an authorized dealer of   said  Tractors. The  complainant   submits that under the H.P.Agreement on 9.11.2005    he  purchased a Tractor  bearing no.Tr.Sl.No.RU  CO 1482  with Dowzer  for a sum of  Rs.6,14,000/-  from third opposite party. The second opposite party  financed   the complainant a sum of Rs.4,50,000/-  out of the  sale price of Rs.6,14,000/-   and the said amount  should be paid by the complainant @ Rs.16,325/- per month within a period of 3 years.   The complainant paid the down payment of Rs.1,64,000/-  to the opp.parties.   On the date of purchase of the said Tractor and Dowzer, second opposite party obtained 15 empty cheque leaves and also took signatures from the complainant on the  empty  promissory note and on some empty papers.   The complainant submits that from the date of delivery of the tractor it was giving trouble.  The complainant informed second and third opp.parties  about the defects  in the tractor  and requested them   to rectify the defects   but they did not rectify the defects.  The complainant spent Rs.50,000/- to rectify the  defects  in the vehicle  to run the tractor in road worthy condition,    but  in vain.   The complainant paid 7 instalments  i.e. Rs.1,14,275/-  to the second opposite party. Subsequently  the complainant came to know that the said tractor was originally purchased by one Anju Raju , native of Pedda Ellagundla Village, Chowdepalle Mandal, Chittoor  Dist.  from the show room of third opposite party on 28.5.2005  by paying spot sale consideration amount and he used  it for a period of one year and returned   it  to opp.parties  as  there was  mechanical and  a manufacturing  defect in it.  Opp.parties remodalised  the said tractor and in turn sold it to the  complainant  under hire purchase agreement  suppressing  that fact that the tractor is a defective and second hand one.   The said Anju Raju  has also handed over the original operator’s manual book, quotation dt.20.4.2005  etc. to the complainant.  The complainant submits that he gave a complaint before the S.H.O.,Alipiri PS  and the police registered a crime   against  the opp.parties for having cheated the complainant.  

The complainant submits that if the Tractor and the Dowzer  is in good and  road worthy condition  he would  daily  earn an income of Rs.4000/-.  The complainant submits that on account of supply of vehicle with mechanical defects he kept the tractor and dowzer in idle condition from the next date of purchase  which resulted  in  loss of monthly income of Rs.1,20,000/-  for about 13 months. The complainant got issued a legal notice  on 17.10.2007  to the opp.parties calling upon them to exchange  the tractor with a new show room tractor, to pay loss of income and to pay compensation of Rs.50,000/-.  The said notice   was received by the opp.parties   and  they  gave reply  with false and frivolous allegations. Hence the complaint seeking direction to the opp.parties to   exchange the second hand tractor  RJC 0.1482  with a new  Tractor, to pay compensation towards loss of income for a period of 13 months  20 days   i.e. from 10.11.2006  total  sum of Rs.16,40,000/-, to pay Rs.50,000/- towards repair charges, to pay Rs.50,000/- towards compensation.

   Opp.party no.1 though received notice remained exparte. 

   Opposite party no.2 filed written version   admitting purchase  of tractor under H.P.Agreement  with this opposite party  and denying other allegations made in the complaint. The opposite party submits that  their company is a registered  company  under Companies Act  and as per the Certificate of incorporation the person to sue and to be sued is only the Managing Director of the Company. The opp.party  no.2 is a separate legal entity.  This opp.party financed  the complainant  Rs.4,50,000/-. The complainant has  entered H.P.Agreement  agreeing to  repay  at Rs.16,325/-  per month  and he paid 8 instalments totaling to Rs.1,30,600/-  and thereafter committed default. Opp.party no.2 submits that  they are  no way connected with the make defects in the vehicle  or any other problems as alleged in the complaint  and the complainant is bound to pay the instalments having availed loan     and this opposite party  is at liberty   to take steps as per the agreement against the complainant.   This opposite party  is not a necessary party and the complainant added this opposite party only to evade payments.   This opposite party  is no way connected with the other parties  except provide  loan of the tractor manufactured  by opp.party no.1 and sold the same through opp.party no.3 .Opp.party prayed for dismissal of the complaint with costs.       

Opposite party no.3  filed  objections denying  the allegations made in the  complaint and contending  that they are not authorized dealers  of Mahendra Tractors from 31.3.2007     and  that they  sold a  new brand vehicle  to the complainant.  Opposite party submits that the complainant at no point of time  made any complaint  regarding performance of the vehicle till  the date of notice.    This opposite party is not a necessary party  to the complaint.  The complainant failed to  adduce  any  material  before the District Forum to  show that there was any manufacturing defect in  the vehicle  or negligence on the part of  opp.party no.3 and  prayed for dismissal of the complaint with costs. 

 The District Forum based on the evidence adduced i.e. Exs.A1 to A8 and pleadings put forward dismissed the complaint without costs.

 Written arguments of  respondents 1 to 3 filed.  Exs.A9 to A11 filed by the appellant/complainant  as additional documents before this Commission .  Exs.B1 to B3  filed before this Commission  by Respondent/opp.party no.3.

It is the complainant’s case that he purchased  Mahindra 605 DI Arjun Tractor Sl.No.RJCO 1482   with Dowzer  manufactured by opposite party no.1 company for an amount of Rs.6,14,000/- from opposite party no.3 dealer.  Out of this amount opposite party no.2 financed Rs.4,50,000/- and the complainant paid an amount of Rs.1,64,000/- towards down payment to the dealer. Ex.A1 is the quotation dt.20.4.05 issued by the Dealer in the name of Kaju Anjiraju. It is the complainant’s case that he paid 7 instalments amounting  to Rs.1,14,275/- to opposite party.2  who took 15 cheque leaves and also the complainant’s signatures on the promissory notes and empty papers.   Thereafter the complainant came to know that the tractor was originally purchased by one Anju Raju on 28.5.05 by paying spot sale consideration  and he used the same for a period of one year and returned the same to opposite parties  as there was a manufacturing defect. The learned counsel for the appellant/complainant contended that the opposite parties remodeled the tractor misrepresenting that it is a new one and therefore the complainant gave a complaint to SHO, Alipiri in crime no.290/07 and  because of the mechanical defects the complainant kept the tractor and dowzer idle from 10.11.06 which resulted in loss of income of Rs.4000/- per day i.e. Rs.1,20,000/- per month and he also issued a legal notice to opp.parties on 11.10.07 calling upon them to exchange the old tractor with a new one (Ex.A7) for which opposite parties 1 and 3 replied vide Ex.A8 dt.1.11.07  but did not settle the matter. 

        Ex.A2 which is the operator’s manual  which is in the name of Kaju Anji Raju   with  the tractor no.SR.no.RJCO 1482, the date of  purchase , invoice number, and dealer’s name is Vijaya Tractor Agencies, Tirupathi.    Ex.A1 is not an invoice but is only a quotation wherein the price of the  said tractor with dowzer is stated as Rs.6,25,000/- in the name of Kaju Anji Raju. It is the complainant’s case that Kaju Anji Raju has purchased the tractor on 28.5.05 by paying spot sale consideration but Ex.A1  shows the financier’s name as Corporation Bank. We observe from the record that the complainant did not file any sale certificate or invoice or cash bill to substantiate his contention that the impugned tractor was originally sold to Kaju Anji Raju.

        The complainant filed Ex.A9  to A11 as additional documents . Ex.A9  are the copies of receipts issued by dealer in the name of Kaju Anji Raju  dt.19.5.2005 and 20.4.2005 for Rs.5,20,000/- and 50,000/- vide cheque no.003313 and 003309 drawn on Corporation Bank respectively which shows that the payment has been made towards  605 D1 Arjun RJCO 1482 Model.  The learned counsel for the appellant/complainant relied on Ex.A11 which is an internet copy   for the tractor Sl.no. RJCO 1482 which shows the transaction date as 25.4.05   and delivered on 30.4.05.  The learned counsel for opposite party no.1 contended that in his affidavit Mr.Kaju Anji Raju stated to have purchased the impugned tractor for Rs.5,70,000/- whereas Ex.A1 shows an amount of Rs.6,25,000/-. We also observe from the record that this difference in price has not been explained by the appellant.  The invoice and the registration certificate of the impugned vehicle said to have been initially   purchased by Anji Raju has not been filed before this Commission.     The date of delivery of the said tractor is said to have been made to Anji Raju on 20.4.05 even before the payment for the same has been made. Affidavit of Kaju Anji Raju  with respect to amounts   paid is contradictory to Ex.A1 quotation.  It is also not conceivable that  he could have used the tractor for 1 year 5 months without registering it.  It was not insured.  Ex.A2 operator’s manual cannot be taken as conclusive evidence to establish that the said tractor was purchased by Kaju Anji Raju. The learned counsel for respondent/opposite party no.1 relied on  FIR Ex.B1 and  Final Report Ex.B2  in which the police have closed the case as ‘false’ case.  It is also pertinent to note that the complainant did not file the bank statement of Corporation Bank evidencing the payments said to have been made by the Corporation to the respondent/opp.party 3 for the said tractor.   In the absence of  material evidence in support of the contention of the complainant that the said tractor is a second hand one  we are of the considered view that the complainant has failed to establish his case with respect to sale of second hand tractor to him.

        Now we address ourselves to the aspect of contention of the appellant/complainant that the impugned tractor was having manufacturing defects. The complainant has not specified as to what the exact manufacturing defect is except stating that    the vehicle was under warranty and gave him trouble right from the date of purchase.  He has filed a   bunch of bills   which are with respect to fan belt , O rings , Steering oil, seal kit power steering etc. which do not establish any manufacturing defect.  We also observe from the record that the complainant has not filed any job cards  issued by the dealer to evidence that there was some manufacturing  defect which the dealer did not rectify. There are no dates mentioned either in the complaint or in the affidavit,  on which dates the said tractor had any manufacturing defects which were pointed by the complainant to the dealer and the dealer did not rectify.   There is no document filed by the complainant to evidence that the tractor was taken to dealer for repairs. There is also no expert evidence filed to evidence the existence of defects which warrant rectification. We observe from the record that the appellant/complainant did not take any steps to send the tractor for any such technical opinion. 

We also observe from the record that the appellant/complainant has not given any substantial reasons as to why  the tractor was taken to  an outside technician for repairs when the tractor   was  in warranty period and the dealer /respondent no.3 is bound to rectify  the defects. Even in the legal notice the appellant/complainant has not exactly stated the nature of the manufacturing defects nor has he given the dates when he has taken the vehicle to the dealer and if the dealer has refused to rectify the same.   There is also no documentary evidence to establish that the complainant had kept the vehicle idle  and was using income of Rs.4000/- per day. In the absence of any documentary evidence in support of the contention of the appellant/complainant that there was any manufacturing defect in the vehicle, we are of the considered view that no deficiency in service can be attributed to any of the respondents/opp.parties   and therefore we see no reasons to interfere with the order of the dist Forum and this appeal fails is accordingly dismissed .No costs.

In the result this appeal fails and is accordingly dismissed . No costs.

                                                                                                                        PRESIDENT

                                                                                                                        MEMBER

Pm*                                                                                                                  Dt. 27.9.2011