Punjab

StateCommission

A/11/1069

Kashmir Singh - Complainant(s)

Versus

M/s Modern Auto Tractor Repair and Service - Opp.Party(s)

Mukand Gupta

01 Apr 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

   STATE CONSUMER  DISPUTES REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1069 of 2011

 

                                                          Date of Institution: 13.07.2011 

                                                          Date of Decision:  01.04.2015

 

Kashmir Singh son of Sadha Singh, resident of village Daburji, Tehsil and District Tarn Tarn.

                                                                                                                                                                   …..Appellant/Complainant

         

                                      Versus

 

1.       M/s Modern Auto (Mahindra and Mahindra Limited) Tractor Repair       and Service, G.T. Road, Tarn Tarn through its      partner/proprietor/principal officer.

 

2.       Mahindra and Mahindra Tractor Ltd., having its registered office at      Akurli Road, Kandivi (E) Mumbai 40901 Gateway Building, Apollo Bunder, Mumbai.

                                                          …..Respondents/Opposite Parties

         

First Appeal against order dated 09.06.2011 passed by the District Consumer Disputes Redressal Forum, Tarn Tarn

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member

Present:-

 

          For the appellant                       :         Sh. Mukand Gupta, Advocate.

          For the respondents                  :         Sh. Vabhav Narang, Advocate

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging the order dated 09.06.2011 of District Consumer Disputes Redressal Forum Tarn Tarn, dismissing the complaint of the complainant with no order as to costs. The instant appeal has been preferred against the same by the complainant now appellant in this appeal.

2.      The complainant Kashmir Singh has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he being an agriculturist, purchased Mohindra and Mohindra Tractor 605 Arjan bearing Registration No. PB46-F/6734 for his personal use from OP No.1, being authorized dealer, OP No.2 its manufacturer, on 23.03.2008 for valuable consideration, which was financed by Punjab National Bank, Adda Daburji Brnach, District Tarn Tarn. The complainant was issued guarantee/warranty for one year by the OPs for this tractor. After plying the tractor for one month, both front tyres thereof with one back tyre were completely damaged and the matter was brought to the notice of the Harbhajan Singh, Technical Manager of the OP No.1 on 25.04.2008 at the time of first service of the above tractor. The repair was carried out at the time of first service, alignment of the tyres was effected and complainant was assured for proper functioning of the tractor thereafter. The complainant plied the tractor after first service for one and half month and all tyres again got damaged and complainant again contacted OP No.1 on 4.6.2008 and its mechanic stated to the complainant that there was manufacturing defect in the front tyre cylinder of it and assured to replace it. He further advised the complainant to get it replaced from Jahaj Ghar Market Amritsar and thereby effected alignment of the tractor. The complainant changed the destroyed tyres from Jahaj Ghar Market Amritsar, but after one year, they were again damaged. On 21.08.2008, after plying the tractor for 345 hours, he visited the OP No.1 for second service and again pointed out to its mechanic that the said manufacturing defect remained persistent therein. The mechanic of OP No.1 changed the cylinder and other parts of the tractor on 21.8.08 by charging Rs.1395/- from the complainant against two bills  dated 21.8.08 no.708 and 819. Even prior to it, OP No.1 charged Rs.1275/- from the complainant against bill no.2451 dated 25.4.08 and Rs.480/- against bill no.437 dated 19.6.08. Even after change of the tyres, the tyres of the tractor again got damaged  and this fact was brought to the notice of OP No.1 on 12.11.2008 and the amount of Rs. 1500/- was again received from the complainant and he was assured for the trouble free service, but the defect remained persistent in the tractor. Thereafter, it was apparent that there was some manufacturing defect in the tractor, which could not be set right in the tractor. Even tractor was produced for inspection in the workshop of OP No.1. The parts of the tractors were changed and the tractor remained under repair till 12.10.2009 and thereafter it was handed over to the complainant and after plying it for 128 hours and during this period, the problem remained persistent in the tractor. Due to this manufacturing defect in the tractor, resulting in loss of Rs.1000/- per day to the complainant from the date of  its purchase and hence the complainant accordingly filed the present complaint against the OPs to replace the tractor with new one of the same make or in alternative to refund the price of the tractor Rs.4,25,000/-. The complainant also prayed for compensation of Rs.3 lac along with interest besides cost of litigation of Rs.20,000/- from the OPs.

3.      Upon notice, the OPs appeared and filed written reply and contested the complaint of the complainant. It was further averred in the preliminary objections that complainant is a lineman in the Punjab State Power Corporation Limited and he purchased the  tractor for renting purpose and he is not a consumer since he  indulged in commercial activities with this tractor. The complainant filed similar complaint previously; vide no.02/2009 on 05.03.2009, which was dismissed as withdrawn on 15.09.2010 after leading some evidence. The complaint was resisted even on merits in this case by the OPs. The admitted fact was that tractor was purchased by the complainant for consideration from them. On merits, they pleaded that the first service got done on 25.4.2008 after using the tractor for 50 hours without any complaint. The alignment of the tyres was part of free service, which was given by the company free of costs regarding the  labour charges and incidental charges. It was submitted that the alignment of tyre was effected only, when it was not properly used or was used by over loading the trolley attached to the tractor and carrying the same on rough or bumpy path or road. The second service was done on 4.6.08, when tractor has been used 258 hours without any complaint. It was denied that complainant complained about any manufacturing defect in the front tyres cylinder or any assurance was given to complainant regarding any such part of the tractor. It was also denied that complainant was advised for getting the tyres changed from Jahajgarh Market. The third free service was given on 12.11.2008, when the tractor had run for five hundred hours without any complaint from the complainant. The complainant got the tyres replaced from the distributor of tyre's company on 9.2.2009 by contributing Rs.1395/- due to misuse of the tractor. It was pleaded by the OPs that the said tractor was used for commercial purposes. It was specifically denied that there was any manufacturing or inherent defect in the tractor, which might have resulted in destroying the tyres as alleged. The complainant has availed the free services up to 9.2.09 and never visited the workshop of the OP after said date.  The OPs further pleaded that there was no deficiency in service or unfair trade practice on their part and it prayed for dismissal of the present complaint.

4.      The complainant tendered in evidence affidavits of complainant Ex.C-1 and Ex.C-2, copy of order dated 10.9.2010 Ex.C-3, letter dated 16.8.2010 Ex.C-4,  affidavit of Baldev Singh Ex.C-5, affidavit of Major Singh Ex.C-6. As against it, OP tendered in evidence affidavit of Harbhajan Singh, Manager  M/s Modern Auto (Mahindra & Mahindra Limited) Ex.RW-1/A, copy of loan application file of Kashmir Singh Ex.R-1/A, job card dated 25.4.2008 Ex.R-1, job card dated 4.7.2008 Ex.R-2, job card dated 12.11.2008 Ex.R-3, User Manual Ex.R-4, photographs Ex.R-5 to Ex.R-9 of the disputed tractor. On conclusion of evidence and arguments, the District Forum, Tarn Tarn dismissed  the complaint of the complainant. Dissatisfied with the order of the District Forum, Tarn Tarn dated 09.6.2011. The instant appeal has been preferred against the same by the complainant now appellant in the present appeal.

5.      We have heard learned counsel for the parties and have also examined the record of the case carefully. The affidavit of Kashmir Singh, complainant in support of his averments contained in the complaint is Ex.C-1 on the record. He has sworn the pleadings of the complaint on oath in this affidavit before the Consumer Forum. His additional affidavit Ex.C-2 is also on the record. Ex.C-3 is copy of the order of District Forum Tarn Tarn dated        15.09.2010 in complaint No.02/2009, instituted on 05.03.2009 titled as Kashmir Singh Vs. Modern Auto Mohindra. This document Ex.C-3 is between the parties of this case regarding same cause of action. It is evident from perusal of Ex.C-3 that the complaint of the complainant was earlier dismissed as withdrawn, however, the District Forum Tarn Tarn permitted the complainant to file the fresh complaint on the same cause of action. Ex.C-3 has, thus, proved that the instant complaint has been filed on the same cause of action by the complainant with liberty to withdraw the previous complaint. Ex.C-4 is the document of Punjab National Bank to the effect that it granted the advance of Rs.4,80,000/- to the complainant for purchase of the tractor. Affidavit of Baldev Singh  Ex.C-5 , affidavit of Major Singh Ex.C-6 on the record to the effect that due to manufacturing defect in the tyres, they were completely damaged prematurely. They also stated in their respective affidavits that there was manufacturing defect in the tractor. This is only evidence brought on the record by the complainant in support of his case. The OPs relied upon the copy of the loan application Ex.R-1/A regarding the purchase of the tractor by the complainant. It is recorded in it that complainant is owner of only 23.5 acre land. Ex.RW-1/A affidavit of Harbhajan Singh Manager of OP No.1. OP No.1 stated that complainant has been using the tractor for commercial purposes. He purchased the tractor for hire purposes exclusively. He stated version of the OP as pleaded in the written reply on the record. Ex.R-1 is copy of Job Card of Modern Auto  dated 25.4.2008 of this tractor. There is no observation recorded on it, which could be of any help to us. Ex.R-2 is copy of Job Card dated 4.07.2008 it has recorded observation that Rear Axl (welter left hand rim bend), this observation was recorded on 04.07.2008 in it. Ex.R.-3 is copy of job card dated 12.11.2008 regarding observation that ractor line mant out. The above referred job cards, as produced on the record, in which, it was recorded in that rear axl (welter left hand rim band) on 4.7.08 in job card no.330, in job card no.1037 dated 12.11.2008 tractor line mant out  is recorded. Ex.R-4 is service book of the tractor. Ex.R-5 to Ex.R-9 are photographs of the tractor on the record.

6.      The District Forum observed that to prove the manufacturing defect in the vehicle, the complainant is required to examine  some expert witness. The District Forum found that there is no expert evidence on the record proving any manufacturing defect in the tractor in question by the complainant. The job card is Ex.R-3 dated 12.11.2008 , it is recorded that at the time of third service, the tractor had run for 500 kms and third service was carried out in November 2008. The tractor must have run for many more hours at present by now.

7.      On the other hand, the submission of counsel for the complainant now appellant is that expert witness was examined in previous file and even otherwise in view of the judgment of the National Commission in Punjab Tractors Ltd.. Versus.. Haman Singh and another reported in IV (2005) CPJ 74 (NC) that two pistons out of three to be replaced along with liner assembly and cam shaft within period of 10 months from the date of purchase. Manufacturing defects proved. We find that cited authorities are distinguishable from the facts situation of the case. This is not a case of defect in two pistons out of three to be replaced along with liner assembly and cam shaft herein.  We find from the consistent view of the Hon'ble National Commission in the case tiled as "Sushila Automobiles Pvt.Limited Vs. Dr. Birendra Narain Prasad and others" reported in III (2010) CPJ 130 (NC) and "Classic Automobiles Vs. Lila Nand Mishra & Ors" reported in 1(2010) CPJ 235 (NC) that the onus to prove that there was manufacturing defect in the vehicle, it is for the complainant to establish that there was manufacturing defect by producing the cogent evidence and by producing the expert witness. The District Forum rightly concluded that alleged defect in the tractor could not be determined without proper analysis  and without examining the expert witness on the record. We find that there is no expert witness on the record examined by the complainant to prove any manufacturing defect in the vehicle. The instant complaint, which was filed by the complainant after withdrawing the previous complaint was not got attached with this complaint, nor it was made part of the record by summoning it. This is new complaint based on the same cause of action and evidence was required to be examined in it denovo. The evidence, if any, on the record, which is not proved as well before us cannot be allowed by us when there is no previous record with us.

8.      Consequently, we do not find any illegality or infirmity in the order of the District Forum, observing that without expert evidence by the complainant, it is difficult to prove the manufacturing defect in the tractor in question. The order of the District Forum calls for no interference in this appeal by us.

9.      As a result of our above discussion, there is no merit in the appeal and the same is hereby dismissed.

10.    Arguments in this appeal were heard on 24.03.2015 and the order was reserved. Now the order be communicated to the parties.

11.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                            PRESIDING JUDICIAL MEMBER

                       

                                                               (VINOD KUMAR GUPTA)

                                                                            MEMBER

 

April  01  2015.                                                              

(ravi)