Per Mr B A Shaikh, Hon’ble Presiding Member

1.      This appeal is filed under Section 15 of  Consumer Protection Act, 1986 by the original complainant; feeling aggrieved by an order dtd.21.05.2007, by which Addl. District Consumer Forum, Nagpur dismissed the consumer complaint bearing No.12/2007 filed by the complainant against the respondent Nos.1 to 5 herein.

2.      It is found by us that the original record & proceedings of the consumer complaint bearing No.12/2007 has been already eliminated by Addl. District Consumer Forum, Nagpur as seen from the letter dtd.21.12.2017 received by this Commission about the same. The said record & proceedings have been destroyed after impugned order was passed in view of the circular issued by learned State Commission, Mumbai and in view of the provisions of Rule 20 of Consumer Protection Regulations, 2005.

3.      It is seen that initially this appeal was dismissed in default by this Commission on 13.03.2012 on the ground that the appellant and his counsel failed to appear for hearing on delay condonation application since long. However, the Hon’ble Bombay High Court, Bench at Nagpur restored this appeal to the file of this Commission as per order dtd.09.04.2013 passed in Writ Petition No.6004/2012 with a direction that the application made for condonation of delay shall be heard and decided initially and if the delay is condoned, then decide the appeal on merits. Both parties to that Writ Petition had undertaken before Hon’ble High Court that they would appear before this Commission on 02.12.2013 after remand of the appeal. The Hon’ble High Court, Nagpur directed that notice be issued to respondent No.2 M/s Loya Tractor before hearing the matter as the said respondent No.2 was not represented by a counsel before the Hon’ble Bombay High Court, Bench at Nagpur in that Writ Petition.

4.      Thus, in view of the said direction, advocate Mr A V Muley appeared for the appellant on 09.05.2013 and filed a Pursis alongwith copy of the said order passed in Writ Petition.  None had appeared for the respondents before this Commission on 09.05.2013.  A notice was also issued by this Commission to respondent No.2 as per above direction.  The said notice was served to respondent No.2.  As respondent No.2 failed to appear for hearing on delay condonation application, we heard the said application exparte against respondent No.2. The respondent No.1 also failed to appear after remand of the appeal though notice was also issued to it.  Advocate Mr M R Joharapurkar appeared for respondent Nos.3 & 4.  The respondent No.5 also failed to appear despite service of notice.  Therefore, after considering material on record, we decided the application made for condonation delay and passed an order on 17.04.2014 and thereby condoned the delay of six days without any cost, that occurred in filing of the appeal.

5.      The appeal was then listed for hearing on admission.  Advocate Smt Priti Khatkhede appeared for the appellant and filed power on 01.08.2014.  Advocate of the respondent Nos.3 & 4 had also appeared on 01.08.2014.  The respondent Nos.1, 2 & 5 did not appear for hearing on admission on 01.08.2014. Then appeal was adjourned for hearing.

6.      However, on 13.03.2015 upon hearing advocate of the appellant and advocate of respondent Nos.3 & 4, we admitted the appeal. Thereafter notices were issued on 30.01.2016 to respondent Nos.1, 2 & 5 as per order dtd.05.01.2016.  The  said notices issued to respondent Nos.1, 2 & 5 after admission of appeal were duly served to them as seen from the acknowledgements received about service of said notices.  Advocate Mr Vinay Sharma appeared for respondent No.1 and filed his power on 16.03.2016.  The respondent No.2 failed to appear despite service of notice. Therefore, as per order dtd. 16.03.2016 passed by this Commission, the appeal is proceeded exparte against respondent No.2.  The respondent No.5 also failed to appear despite service of notice and therefore this Commission proceeded exparte against respondent No.5 as per order dtd.07.06.2017 passed by this Commission.

7.      The learned advocate of the appellant filed Written Notes of Arguments on 06.10.2015. The learned advocate of respondent Nos.3 & 4 filed common Written Notes of Arguments on 08.03.2018.  The learned advocate of respondent No.1 filed his Written Notes of Arguments on 08.03.2018.  The appeal was listed for final hearing on 08.03.2018.  However, none appeared for respondents to make oral submission on 08.03.2018.  The appeal was then adjourned till 09.04.2018.  On that date also none had appeared for the appellant.  The appeal was then adjourned till 27.06.2018.  On that date also none had appeared to make oral submission. Therefore, considering that the appellant already filed Written Notes of Arguments, we proceeded to decide the appeal on merits after hearing learned advocate of respondent Nos.1, 3 & 4. Thus, the Written Notes of Arguments filed by the appellant are being considered as oral arguments of learned advocate of the appellant.  We have also perused the entire record & proceedings of the appeal. 

8.      The case of the appellant as found from the record of this appeal in brief is as under.

a.      The appellant purchased a tractor with trolley manufactured by respondent No.1 from respondent No.2, which was authorised dealer of respondent No.1.  The appellant obtained loan from respondent Nos.3 & 4 – Finance Company for purchasing the said tractor & trolley. The respondent No.5 is Customer Care Operator of respondent No.1.

b.      The warranty given for the tractor was either running for 2000 hours or 24 months, whichever is earlier. However, when the tractor had run for 323 hours only, it became out of order.  When it was taken to respondent No.2 for repairing, it was found that its dealership was cancelled by respondent No.1. Therefore, the appellant gave intimation to respondent No.1 for repairing of the vehicle.  However, after 15 days of giving that intimation, the respondent No.1 deputed a mechanic and took away spare parts of the tractor, which were defective. The same were replaced after 45 to 60 days and therefore, that tractor was kept idle for that one and half month. Then again said tractor became out of order on 20.05.2005 after it was run for 371 hours. Its intimation was given to respondent No.1. However, its battery was not changed by respondent No.1. Therefore, the appellant purchased the new battery from market.  The tractor was not repaired by respondent No.1 for long time.  Hence, the appellant at his own expenses got it repaired from the authorised dealer of respondent No.1.

c.       Moreover, it was also found by the appellant that respondent No.2 obtained more money than price of the truck and trolley from him.  So also the respondent Nos.3 & 4 have also charged more interest i.e. @ 10% p.a. though agreed rate of interest was 7% p.a. only.

d.      The appellant was required to purchase spares parts of the tractor from market, though the same were to be supplied under warranty period by respondent Nos.1 & 2.  The respondent No.4 has not given RC Book of the tractor to the appellant and therefore, the appellant could not take steps for renewal of its permit. 

9.      Hence, the appellant filed consumer complaint against respondent Nos.1 to 5 under Section 12 of Consumer Protection Act, 1986 before the Forum below, seeking direction to the said respondents as follows:

          The respondents to provide RC book to appellant and pay him compensation of Rs.40,000/-. The respondent to refund Rs.22,000/-, which was taken in excess from him towards insurance, passing charges and documentation charges.  The respondent to return battery of the tractor kept with them or to pay him Rs.5,000/- towards price of battery.  The respondents to return Rs.10,000/- to the appellant, which is obtained by them in excess towards price of the trolley.  The respondents to provide the original bill of the tractor & trolley to the appellant to provide copy of the loan agreement. The respondent Nos.1 & 2 to provide the price list of the tractor for the years 2004-2005 and 2005-2006. The respondents to replace the tractor by new tractor. The respondents to refund Rs.58,000/-, taken in excess of the price of tractor from the appellant. The respondents to pay compensation of Rs.90,000/- to the appellant towards loss suffered by him in the yield of the crop as the tractor was not used and to pay interest over that amount @ 12% p.a. from 07.09.2005 and also to pay compensation of Rs.30,000/- for mental  harassment, litigation cost of Rs.10,000/-.  Moreover, the respondents to pay interest @ 12% p.a. more over the total amount of Rs.3.00 Lakhs till the tractor is replaced by new tractor.

10.    The said complaint was resisted by respondent Nos1 & 5 by filing their common reply and by respondent Nos.3 & 4 by filing their common reply. The respondent No.2 did not appear before the Forum below despite service of notice. Therefore, the Forum below proceeded exparte against respondent No.2 by passing an order on 30.03.2007.

11.    The respondent Nos.1 & 2 in their reply denied allegations made against them by the appellant and submitted that there is no privity of contract in between them and the appellant.  But the complaints made by the appellant were attended by respondent No.1 and whenever the tractor was brought in workshop for repairing, all the defects were removed. The appellant had shown his satisfaction after repairing of the vehicle each time.  There was no warranty of battery given by respondent No.1. The quotation was already given to the appellant about the price of the tractor and therefore it is denied that the excess price of the tractor & trolley was obtained from the appellant.  There is no defect in the tractor.  Hence, it was prayed by respondent No.1 that the complaint filed against them may be dismissed.

12.    The respondent Nos.3 & 4 in their reply denied the allegations made in the complaint against them and submitted in brief that the appellant filed false complaint against them to avoid payment of instalments to them towards loan obtained by him for purchasing tractor & trolley.  The original RC Book is not in possession of respondent Nos.3 & 4. The copy of loan agreement dtd.13.10.2005 was given to the appellant. Therefore, it was prayed by respondent Nos.3 & 4 that the complaint may be dismissed.

13.    The Forum below after hearing aforesaid contesting parties and considering evidence brought on record, passed the impugned order and thereby dismissed the complaint.  The Forum in the impugned order concluded in brief as under.

          It is seen from the documents, which are at Pg.Nos.142 to 148 filed by respondent Nos.1& 5 that some parts of the tractor were replaced by respondent No.1 on 07.06.2006 and no charges were claimed for the replacement of those parts. Moreover, on the said documents, it is specified that the tractor was not properly handled.  There is no expert opinion on record to show that there is manufacturing defect in the tractor.  The aforesaid documents also proved that every time after servicing of the tractor, the appellant was satisfied about the servicing and he put signature below remarks on the documents about his said satisfaction. The respondent No.1 & 5 took cognizance of the complaint made by the appellant from time to time and repaired the tractor by replacing its parts and therefore they have not rendered deficient service.  Moreover, the Clause No.5 of the warranty book shows that the battery is not covered under warranty.   The appellant can approach competent Civil Court for redressal of his grievance against the financer.

14.    Thus, in consonance with the said observations, the complaint came to be dismissed.  As observed above, feeling aggrieved; the complainant has filed this appeal. The learned advocate of the appellant in his Written Notes of Arguments made submission in brief as under:

          The appellant was continuously in touch with respondent No.1 for his grievance, but his tractor was not repaired and therefore the appellants suffered heavy monetary losses. The respondents charged excess amount for the tractor & trolley. The respondent Nos.3 & 4 are the counter parts of the respondent No.1 and they have also not supplied requisite documents i.e. copies of loan agreement, registration book and other documents issued by RTO, though notices were issued to them by the appellant. Therefore, the appellants suffered mental harassment at the hands of respondents.  Therefore, the appellant had filed consumer complaint before the Forum below for supply of RC Book and other documents and for return of battery, for payment of damages and replacement of the tractor.  However, the Forum below dismissed the complaint without proper consideration of the case and evidence of the appellant.

15.    The grounds raised in the appeal memo are relied on by the appellant’s advocate.  The ground raised in the appeal memo in brief are that  the Forum below did not consider the evidence in right perspectives. The respondent had obtained signatures of the appellant on their papers by keeping the blank portion.  The appellant in appeal memo has also reiterated his case as discussed above in brief.  He lastly submitted in appeal memo that the impugned order deserves to be set aside or alternatively, the Forum below may be directed to decide the matter on merits and consider the submissions and documents as above.

16.    The learned advocate of respondent No.1 in his Written Notes of Arguments filed in this appeal, supported the impugned order and submitted that no deficiency in service on the part of respondent No.1 is proved and therefore he requested that the appeal may be dismissed.

17.    The learned advocate of respondent Nos.3 & 4 in his Written Notes of Arguments also supported the impugned order and submitted that as there is no merit in this appeal, it may be dismissed.

18.    We find from minute perusal of the record & proceedings of this appeal that the appellant has not produced any document in appeal to prove that the respondents provided deficient service to him or adopted unfair trade practice.  Moreover, we find that the Forum below has rightly observed that there is no expert opinion to prove manufacturing defect in the tractor.  No doubt, the tractor was taken some time for repairing to the authorised service centre of respondent No.1, but it is rightly found by the Forum below that the appellant was satisfied after repairing of vehicle on each time and he put his signature below the endorsements on job card about his said satisfaction.

19.    We also find that a separate remedy is available to the appellant as observed by the Forum below as regards dispute relating to loan transaction in between the appellant on one side and respondent Nos.3 & 4 on another side. The Forum below has therefore rightly observed in the impugned order that the appellant can approach competent court for seeking appropriate relief as regards the dispute relating to loan transaction.

20.    We, thus, find that it is not proved by the appellant that there is some manufacturing defect in tractor or the respondent No.1 & 5 have not provided proper service during the period of warrant and recovered more price than the actual price of the tractor & trolley from him.  Moreover, it is rightly observed by the Forum below that the battery was not covered under the warranty. 

21.    Thus, we hold that the respondent Nos.1 & 5 cannot be held responsible for payment of any compensation to the appellant.  The appellant is also not entitled to seek any relief in the complaint as specified above.

22.    Thus, while deciding the appeal on merits, we hold that the Forum below has properly considered the evidence on record and reached to the correct conclusion. The appeal is thus, devoid of merits and it deserves to be dismissed.

ORDER

i.        The appeal is dismissed.

ii.       No order as to costs in this appeal.

iii.      Copy of the order be furnished to both parties free of cost.