Filed On: 05.04.2010
Disposed On:14.07.2015
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR
PRESENT . THIRU. S. PANDIAN, B.Sc., L.L.M : PRESIDENT
TMT. S. SUJATHA, B.SC., : MEMBER-I
THIRU. V. VENKATESAN, M.A.B.Ed., MBA. M.PHIL.B.L., : MEMBER-II
Tuesday, the Day of 14th July-2015
CC. No. 9/2010
Kasi Mudaliyar
S/o. Kullappa Mudaliyar
V.No. 73, Natham Village
Panjatti Post, Ponneri Taluk
Tiruvallur District. …Complainant
-Vs-
1. Mahendra & Mahendra
Gateway Building
Appollo Bundar
Mumbai – 400 001.
Also at
Mahendra Towers
No. 13, Worli Road
Mumbai – 400 018.
2. Aiswarya Tractors Pvt. Ltd.,
No. 2/15, G.N.T. Road
Janappan Chathiram
Alinijivakkam
Chennai 600 067. …Opposite Parties
Counsel For Complainant :M/s. N. Nithianandam, Adovcate
Counsel For Opposite Parties :M/s. T. Parthasarthy, Advocate
This Complaint is coming upon before us finally on 03.07.2015 in the presence Mr. N. Nithianandam, Advocate on the side of the complainant and Mr. T. Parathasarathy, Advocate Appeared on the side of the Opposite Parties 1&2, and upon hearing arguments on the side of the both and perused the documents evidence, this Forum, delivered the following.
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This complaint is filed by the complainant U/S12 of Consumer protection Act 1986 against the opposite party seeking direction that the opposite parties are jointly and severally to replace the Mahendra 595D/ super Turbo 52 HP Tractor bearing the Reg.No. TN. 184988 or to pay a sum of Rs.5,59,795 with the incidental expenses of Rs.50,000/- with interest for entire amount at rate of 12% from 28-2-2009 till the date of realization and to pay a sum of Rs.5,00,000/- towards compensation with the cost of Rs.25,000/-
The Brief Facts of the Complaint are as follows:
1. The complainant is a farmer by profession and agriculture is the only source of income. In order to effectively cultivate the lands and carryout agricultural operations, the complainant had owned several brands of Farm Tractors with necessary equipments from time to time for his agricultural operations. The Complainant had placed an order for purchase of Mahindra 595 DI Super Turbo 52 HP Tractor with standard tools with the 2nd Opposite party herein who is a dealer of the 1st Opposite Party in the month February 2009. Pursuant to placing order on 28.02.2009, the complainant through his son K. Kalyanasundaram paid an amount of Rs. 1,000/- by way of cash to the 2nd opposite party. Acknowledging receipt of the said sum, 2nd opposite party issued receipt No. 2552 dated 28.02.2009/02.03.2009,. Subsequently on 29.04.2009 the said K. Kalyanasundaram son of the complainant again paid an amount of Rs.18,500/- to the 1st Opposite party which is evident from the money Receipt No. 2756 dated 29.04.2009. The total price of the said Tractor was Rs. 5,59,795/-. Thereafter, he arranged financial assistance from M/s. Kotak Mahindra Bank of Rs.304522/-for purchase of the above said tractor. The remaining amount of Rs.3Lakhs was paid by the complainant by cash. As such, the complainant had paid total amount of Rs.5,59,795/- together with necessary insurance and other ancillary charges to the 2nd opposite party which is evident from the Invoice No. 8233 dated 13.03.2009. there upon, the 2nd opposite party delivered the said Tractor to the Complainant by delivery Challan No. 930 dated 06.03.2009, which was received by the son of the complainant with warranty period.
2. After taking delivery of the Tractor from 2nd Opposite Party, it was put to use for agriculture purpose as per the instructions and guidance offered by the 2nd Opposite Party. Within a short span of less than few days the complainant noticed that the engine of the Tractor within 15 minutes or so of use was getting unbearable heat and the water level in the Radiator also simultaneously getting reduced. Immediately, the complainant brought to the notice of the 2nd Opposite Party about the said defects in the engine of the Tractor. The 2nd Opposite Party after checking the Tractor for a while informed that the said defect was rectified. The Complainant believing the same taken back the Tractor and started to use for his agricultural operations. However, the same defects cropped up every time within 15 to 20 minutes of the use, as a result the complainant was not able to use the Tractor continuously for his agricultural purposes which hampered his agricultural operations and caused heavy loss. This was again and again on 3 or 4 occasions brought to the knowledge of 2nd Opposite Party. On every occasion they checked and informed that it is alright and rectified. The 2nd Opposite party evasively replied on each occasions without any proper response. Thereafter, the complainant approached the independent Tractor mechanic, on inspection he informed that the boiling of the engine and radiator is due to the inherent manufacturing defects in the engine which cannot be rectified by repair unless the engine is replaced. Immediately, the said fact was informed to the 2nd Opposite Party. The 2nd opposite party again directed the complainant to bring the tractor for their inspection and repair. Accordingly, the complainant had taken the Tractor to the workshop of the 2nd Opposite Party on 08.06.2009.
3. After the inspection by the 2nd opposite party, the complainant personally inspected the working condition of the tractor. The said defect pointed out by the complainant was still persisting and the 2nd opposite party was not able to properly explain the defects for in a position to answer the same. As such the complainant demanded replacement of Engine or Tractor as a whole since the defects are within a short span of few days of purchase of Tractor and it is also during the warranty period. Inspite of several representations personally to the 2nd Opposite Party, they were neither able to permanently cure the defects nor was in a position to properly answer the same. As a result, the complainant issued a Legal Notice dated 26.06.2009 to the opposite parties, which was duly received by them. The 1st opposite party in reply to the Legal Notice of the complainant issued a communication dated 03.07.2009 wherein they have informed that they are in the process of collecting relevant details about the averments in the legal notice from their Area Office and they will reply in short time and further requested not to precipitate the matter further, believing same the complainant waited for more than 7 months, but there is no response.
4. The 2nd opposite party being dealer of the 1st opposite party has not sent any reply till date to the legal notice issued by the complainant. From the date of purchase, the abnormal heat and consequent radiator boil thereby causing the complainant not able to use the Tractor for his agricultural operations, within the warranty period itself. The complainant was made to suffer to pay interest and penal interest for the financial assistance availed by him from M/s. Kotak Mahindra without any justification. On and from 08.06.2009, the Tractor is lying with the 2nd opposite party, who has not cared for the same. Hence, this complaint.
Written Statement of Filed on Opposite Party -1&2 are as follows:
5. It is admitted that the complainant was delivered the alleged Tractor on 06.03.2009 on record since as per the complainant it was auspicious day for the complainant. On 11.03.2009 only the job card was opened installation (P.D.I) of tractor was done and only on 11.03.2009 it was taken by the complainant only on 15.04.2009 the above complainant brought his tractor to the workshop of the first opposite party stating that the hand break was not working well. He made no other complaint on that day. Immediately hand break cable was replaced and the complainant with full satisfaction took the tractor on the same day itself. It is not correct to say that the complainant made complaints regarding the radiator’s problem. Then on 10.05.2009 the above said complainant brought the tractor again stating that overheating was caused along with LH noise and black smoke. The radiator was found some mud in it. Immediately it was cleaned, the break drum was cleaned and the fan belt was adjusted and then the complainant took his tractor with his full satisfaction to his home. He never alleged any other problems at that time. Then on 08.06.2009 he brought the above tractor to the service center of First opposite party stating that radiator water boiling. It was found that there was no other problem but the radiator boiling was due to radiator chock, because of complainant’s abuse but not due to any manufacturing defect but due to mud water entry in the engine because of that the engine itself, it got seized. So rigs set, head gasket, sleeve-o-ring were replaced as a special case and the tractor was ready for delivery on 11.06.2009 itself. Meanwhile the First opposite party on 08.06.2009 itself tractor for temporary operation so that the complainant would not loss his business. But the complainant was not interested to take the old tractor for the reasons best known to him from 11.06.2009 onwards the First opposite party made frequent phone calls to the complainant stating that his tractor was ready without any problem and asked him to come and take his tractor. But the complainant did not turn back to the First opposite party sent a letter to the complainant stating that, he left his tractor on 08.06.2009 and it was serviced and the tractor was ready in full condition and he could come and take the above tractor at any time which was kept ready for delivery for about 10 days and in the same letter the first opposite party mentioned that the has phoned several times to the complainant but he did not response.
6. The complainant did not come and take his tractor but he sent a notice dated 20.06.2009 making some false allegation stating that there was manufacturing defect in the engine of the tractor. It is not correct and there is no manufacturing defect at all in the above Tractor or its engine. Further it is not correct to state that after 08.06.2009 he enquired some experts of the tractors and came to know that there is manufacturing defects in the engine of the tractor. The complainant totally failed to pay the loan dues to the Kotak Mahindra Bank Pvt., Ltd., from whom he took finance for the above Tractor. Hence the Bank authorities approached the Honourable High Court in A. No. 1126/2010 got permission to seize the Tractor for which they got order and got appointed an advocate commissioner and the commissioner in order to seize the Tractor came on 13.03.2010 to the First Opposite party’s workshop and took their tractor with court orders from the First opposite party workshop legally. The First Opposite party was unable to do anything but allow the commissioner to seize the Tractor to the Bank as per High Court Order. There is no any manufacturing defects in the tractor or no deficiency of service of opposite party but only the minor problems were found in the Tractor that too due to the misuse and abuse of the complainant by pouring mud water without any due care etc. They deny all other false allegations made by the complainant in the false and imaginary complaint. The complainant has not come to this Forum with pure hands. Hence his petition is liable to be dismissed with exemplary cost.
7. On the side of the complainant, proof affidavit filed for his evidence. Ex.A1 to Ex.A8 are marked. While so, the proof affidavit filed by the opposite parties as their evidence. Ex.B1 to Ex.B6 are marked.
8. At this juncture, the points for consideration before this forum, is,
- Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?
- Whether the complainant is entitled for any relief, if it is on, To what ?
9. Written Arguments submitted by both sides and the copy of the same is furnished to other side.
10. Point No. 1:- First of all, an perusal of the proof affidavit, it is learnt that when the complainant was in urgent need of tractor for agricultural purposes, the complainant had purchased the Mahindra 595D/ Super Turbo 52HP Tractor, from the opposite Party -1 on 28.2.2009 on placing the order with the Opposite Party-2 for a sum of Rs.5,59,795/- and to that effect Ex.A1 invoice has been issued and it was delivered by the opposite party-2 on 6.3.2009 through delivery chalan No.930. The said purchase was made from the own funds of the complainant and financial association from M/J Kotak Mahindra Bank Ltd., and the payment schedule for the finance association of the above said Bank is marked as Ex.A2.
11. It is further narrated by the complainant that within a short span of less than few days he noticed that the engine of the Tractor within 15 minutes or so of use was getting unbearable heat and the water level in the radiator also simultaneously getting reduced and immediately the complainant brought to the notice of the Opposite Party-2 and not fully rectified, the complainant was forced to approach the opposite party-2, 3 or 4 occasion for the same defect in the tractor for rectification. But the defects in the engine are persisting from date of Purchase and it was not attended of the Opposite Party permanently and the opposite party-2 replied evasively on each and every occasion without any proper response. It is fully stated that the defect are inherent during the period of warranty and as such the Opposite Parties cannot escape from responsibilities and because of the lethargic attitudes of the opposite parties the complainant was not able to use the tractor for agricultural purpose and he has to incur heavy expenditure of Rs. 2,50,000/- by engaging the private tractor and thereby caused mental agony.
12. On further perusal of the proof affidavit, it is seen that the complainant has issued the Ex.A3 Legal Notice to the Opposite Parties and the same was recorded by them and in turn they sent Ex.A4 reply notice and Ex.A5 are Acknowledgement cards.
13. Next, it is the duty of this forum is to see the contention raised by the opposite parties. Ongoing through the proof affidavit, it is stated that it is not correct to say that there is no radiator problem and in fact that this radiator was found sum mud in it and immediately it was cleared and subsequent complaint of radiator boiling was due to radiator chock because of the complainant misuse and mishandling but not due to any manufacturing defect but due to mud water entry in the radiator and it got sized and even though the problem rectified and ready in full condition, the complainant did not turn back to take the tractor despite several phone calls from opposite party-2. It is further stated that there is no manufacturing defects and no deficiency in service.
14. At this juncture, the duty cast upon this forum to decide whether the complainant has completed his burden to prove the allegation is made in the complaint. On careful perusal of the rival submissions put forth on either side it is admitted fact that the alleged tractor was purchased by the Complainant from the opposite party on 6.3.2009 and on 15.4.2009, the complainant brought the Tractor to the opposite party-2’s Workshop for reporting that the hand break was not working well, and again on 10.5.2009, the complainant brought the tractor stating that overheating was caused and the same has been rectified. It is further learnt that, on 8.6.2009 the complainant again brought the tractor, to the opposite party-2’s Service centre and stating that the radiator was boiling and in fact it is due to the complainant’s misuse and mishandling and the entry of mud water in the radiator and it got seized.
15. At this point of times, as per the statement of the complainant is that from the date of purchase of the tractor it caused problem and repair day by day within the short span of usage of the tractor and the mistake was brought to the notice of opposite party-2, on three occasions and on all occasions the opposite party-2 was informed the complainant that vehicle is in order and the complainant had taken the vehicle believing the assurances of the opposite party-2. But the above major defects were frequently started happening as it was difficult to use continuously for agricultural operations which caused heavy damages and hampering the cultivation in time. Further, the complainant enquired about the defects and reliably understands that the defects are manufacturing defects which cannot be repaired by Opposite Party-2. The said fact has been proved by the complainant on production of the expert opinion obtained from the private machine which is marked as Ex.A4. To that extent the burden of the complainant has been completed. In such circumstances, if the opposite parties are not satisfied with the above said expert opinion, the burden shifted to the opposite parties to disprove the same by appointing their own experienced Mechanical Engineer to inspect the vehicle which is now under the custody of the opposite party-2 and to file the report before this forum. But the opposite parties failed to do so. Hence, mere oral contention is not sufficient and the same cannot be taken as evidence for consideration. Therefore, there is no hindrance to draw adverse inference against the opposite parties and thereby it can be presumed that there is some mechanical defects in the alleged Tractor which was purchased by the complainant.
16. In furtherance, it is pertinent to note that from the Ex.B1 to B3 job cards it is crystal clear that the alleged Tractor was brought to the service system of Opposite Parties -2 repeatedly for the repair i.e., regarding the over heat in the radiator within the short span of time from the date of purchase. Normally in such, a situation the onus of proof should be shifted to the side of the opposite parties when the manufacturing defects are visible on its face. Further in this aspect, if there is no explanation on the side of the opposite party the manufacturing defect must be assumed. In this connection, this Forum relied upon the following decisions. 2014 (3) CLT.177 (NC) Krishanpal Singh vs Tata Motors Limited & others. When the complainant had to visit the service station repeatedly for repairs, normally, in such like situation, the onus proof should be shifted to the side of the Opposite Party when the manufacturing defects are visible on its face and the opposite party has no explanation to make, the manufacturing defect, ‘must be assumed’.
17. In the light of the above facts and observations this forum, without any hesitation to told that the complainant has proved that there is manufacturing defect and to that effect the Opposite Party’s have committed the deficiency of service since they did not come forward to rectify the same. Thus point no. 1 is answered accordingly.
18. Point No.2:- As per the decision arrived in the point no. 1 this Forum, concluded that the complainant is entitled to get the relief as prayed for with the reasonable compensation and cost. Thus point no.2 is answered accordingly.
In the Result, the Complaint is allowed in part. Accordingly, the opposite parties are jointly and severally directed to replace the Engine No. NNOL 1814 of the Mahindra 595 DI Super Turbo 52 HP Tractor Bearing the Registration No. TN 18 4988 within a month from the date of the receipt of the copy of this order, failing which to refund the sum of Rs.5,59,795/- (Rupees Five Lakhs Fifty Nine Thousand Seven Hundred and Ninety Five Only) with interest of 10% from the date of this petition i.e 31.03.2010 to the date of this order. In addition to that the opposite parties are directed to pay a compensation of Rs.1,00,000/- (Rupees One Lakh Only) towards the deficiency in service and mental agony and a cost of Rs.5,000/- (Rupees Five Thousand Only).
The above amount shall be payable within one month from the date of receipt of the copy of this order, failing which the said amount shall carry interest at the rate of 9% P.A. till the date of payment.
Dictated directly by the president to the Steno-typist, transcribed and computerized by her, corrected by the president and pronounced by us in the open forum on this the 14th July – 2015.
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MEMBER – I MEMBER-II PRESIDENT
List of complainant Documents:
Ex.A1. Dt.13.03.200 - Xerox Copy of Invoice of the 2nd Opposite
Party
Ex.A2. Dt.29.05.2009 - Xerox Copy of Payment schedule for the Finanical
Assistant offered by M/s. Kotak Mahendra Bank Ltd.
Ex.A3. Dt.25.06.2009 - Legal Notice to the Opposite Parties
Ex.A4. Dt.03.07.2009 - 1st Opposite Party Reply Notice
Ex.A5. - - Acknowledgement cards
Ex.A6. Dt.05.07.2010 - Original Copy of Highe Court Order
Ex.A7. Dt.17.10.2011 - Original Copy of Chief Mechanic Report (Ramani
Tractors Works)
Ex.A8. Dt. - - Mahendra Tractors Details
List of Opposite Parties Documents:
Ex.B1 Dt.20.06.2009 - Letter to the complainant by the 2nd Opposite Party
Ex.B2 Dt.06.03.2009 - Pre Delivery Inspection
Ex.B3 Dt.15.04.2009 - Job Card
Ex.B4 Dt.30.05.2009 - Job Card
Ex.B5 Dt.08.06.2009 - Job Card
Ex.A6 Dt.13.03.2010 - The Commissioner of High Court Letter to the
Opposite Party
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MEMBER –I MEMBER-II PRESIDENT
