Punjab

Rupnagar

CC/10/24

Sh. Budh Singh - Complainant(s)

Versus

M/s New Saini Automobiles - Opp.Party(s)

Sh. Dharampal

01 Dec 2015

ORDER

ORDER

                                      MRS. NEENA SANDHU, PRESIDENT

                   Sh. Budh Singh had filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for issuance of the directions to them asunder:-

i)       To replace the tractor purchased by him or in the alternative, to refund its price i.e. Rs.4,90,000/- alongwith interest @ 12% PA from the date of its purchase till realization,

 

ii)      To pay Rs.1,00,000/- as compensation on account of mental agony, physical harassment & monetary loss suffered by him due to deficiency in service & adoption of unfair trade practice by the O.Ps.,

 

iii)     To refund the service charges charged by the O.P. No.1 in lieu of free services,

 

iv)     To pay Rs.10,000/- as costs of the complaint,

 v)     To grant any other relief, which this Forum may deem fit, in the interest of justice.

 

2.                In brief, the case of the complainant is that he had purchased a Sonalika DI 750III model tractor, manufactured by the O.P. No. 2, from the O.P. No.1, for a sum of Rs.4,90,000/- in the month of May,2009. However, the delivery of the tractor was made to him, after a delay of one week’s period. At the time of purchase of the said tractor, the O.P. No.1, had assured him that if any defect arises in the said tractor within 18 months, then the defective part would be replaced free of cost or the tractor would be replaced. After sometime, the tractor failed to lift load and it used to stop, when it was loaded. On being approached, the O.P. No.1 effected some repairs and assured him that the tractor would lift the load properly and if it fails to carry the load, then it would be replaced. After about two months of its purchase, self of the said tractor got burnt. He again approached the O.P. No. 1, who told him to approach its sub-agency at Ghanauli. The mechanic of the said agency replaced the self, with an old self, stating that at that time, new self was not available, and the same would replaced, after receipt of a new one from the O.P. No. 2 after a period of 10 days. He also found that wiring of the tractor was not working properly and the O.P. No. 1 had temporarily put the same in working condition by using the old wire. He was assured that the same would also be replaced with a new one, after receipt of the same from the O.P. No. 2 alongwith the new self. Thereafter, after a period of one month, further problems developed in the said tractor, which were as under:-

a)       It again fails to lift load and used to stop, after being loaded.

b)      Its wiring had went out of order.

c)       The   four nozzles had started striking.

d)      The front tirades had become feeble.

e)       The meters stopped to work.

f)       It had started emitting smoke.

 

                   He, accordingly, approached the office/service station of the O.P. No. 1, situated at village Ghanauli, but he was asked to visit its service station at Ropar and he had to visit the O.P. No.1 thrice for the said purpose, but the O.P. No.1 could not put the tractor in order. Thereafter, he was asked to go to Nalagarh, where also he was called 4 times, but even then the tractor could not be put in working order. Thereafter, he also found that pump of the tractor was old one and there was no nut of Enola. It is further stated that the said tractor suffers from manufacturing defects from the very beginning of its purchase and its functioning was not satisfactory. The O.Ps. have also not provided, free services, as assured by them and had charged for all the services. Even the O.P. No. 1 has not provided basic facilities/equipments for service of the said tractor. He had requested the O.Ps., so many times, to replace the said tractor, but they had put off the matter on one pretext or the other. The O.Ps. have, thus, committed deficiency in rendering service and have adopted unfair trade practice, due to which he has suffered mental agony, physical harassment and financial loss. Hence, this complaint.

 

3.                On being put to notice O.P. No.1 filed written version, taking preliminary objections; that the complaint does not lie and it is not maintainable in the present form; that complainant has no locus standi & cause of action to file the same against the answering O.P.; that he has not come with clean hands and has concealed the material facts from this Forum, as such, he is not entitled to any relief; that he is not consumer of the answering O.P.;  that there is no deficiency in service on the part of the answering O.P. and the complaint is liable to be dismissed on this score alone; that this Forum has no territorial jurisdiction to entertain & try the instant complaint and that the complaint is bad for non-joinder and misjoinder of necessary parties. On merits, so far as the factum of  purchase of tractor in question is concerned, it is stated that it is a matter of record. It is further stated that the complainant is a desperate person, who has no regard for the law, as he had created violence in the premises of agency of the answering O.P. under the influence of liquor and at that time, he was also accompanied by other 4-5 persons and they had assaulted the officials of the answering O.P. In the month of April, 2010, a new self was fitted in the tractor of the complainant and his son, namely,  Hardial Singh, who got the tractor repaired, had given a satisfaction letter on 27.4.2010, about the same, but the complainant has filed the instant complaint with ulterior motive to harass & humiliate the answering O.P. It is further stated that no report of any expert/mechanic/engineer has been obtained by the complainant regarding the manufacturing defects in his tractor, as alleged by him in the complaint. Service of the tractor was done, free of cost, for a period of 1½ year from the date of its purchase. There being no deficiency in service or adoption of unfair trade practice on the part of the answering O.P., the complainant is liable to be burdened with heavy costs for falsely implicating it into this unnecessary & uncalled for litigation.  Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal of the complaint with heavy costs, the same being without any merit.

 

4.                Separate written version was filed by the O.P. No. 2 in the form of affidavit of Sh. Malkiat Singh, Chief Factory Manager-cum- Assistant General Manager, taking preliminary objections; that the complaint is false & frivolous and abuse of process of law; that the complaint is not maintainable in the present form and is liable to be dismissed with exemplary cost; that there is no manufacturing defect in the tractor purchased by the complainant, as alleged in the complaint; that no cause of action to file the complaint against the answering O.P. has ever arisen to the complainant; that the problems as alleged by the complainant cannot occur due to some manufacturing defect, but the same can only occur due to some accident, mishandling or by struck against any thing; that the allegations made in the complaint do not disclose any consumer dispute; that there is neither any deficiency in service nor adoption of any unfair trade practice on the part of the answering O.P. On merits, it is stated that the answering O.P. does not deal with the customers directly and it is the only O.P. No. 1 who deals with the customers directly. The warranty for the tractor in question was for one year, during which period defective parts were to be replaced but the tractor was not to be replaced. Whenever the complainant had visited the O.P. No.1, it had provided services to his full satisfaction. The warranty of wiring was also subject to certain terms & conditions. The tractors manufactured by the answering O.P. are certified with ISO 9001 and 14001 certificates and the same are manufactured under highly standardized quality control system, as such, there is no question of any manufacturing defect, as alleged in the complaint. The alleged defects were minor defects and had occurred due to mishandling of the said tractor. On the request of the complainant, the O.P. No. 1 had removed all the defects, as alleged by the complainant, and his tractor is in perfect running condition. He had also signed the satisfaction note in that regard after satisfying himself. As such, the matter has been resolved after filing of the complaint, as such, the same is liable to be dismissed. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal of the same against the answering O.P.

 

 5.               On being called upon to do so, the learned counsel for the complainant tendered affidavit of the complainant Ex. C1, affidavit of Sh. Roop Lal, Mechanic, Ex.C2 and his report Ex.C3, visiting card Ex. C4, photocopies of documents Ex.C5 to C7 and closed the evidence. On the other hand, the learned counsel for the O.P. No. 2 tendered affidavit of Sh. Malkiat Singh, Ex.R1, photocopies of documents Ex. R2 & R3, whereas the learned counsel for the O.P. No. 1 tendered affidavit of Sh. Satnam Singh, Ex. R4, photocopy of satisfaction note, Ex. R5 and closed the evidence. However, Sh. Satnam Singh, proprietor of O.P. No.1 also tendered report of Er. Harbans Singh, Ex. R6 and his affidavit Ex. R7, by way of additional evidence. Sh. Roop Lal, mechanic, whose affidavit was tendered as Ex. C2 by the complainant, was also cross-examined at length by the learned counsel for the O.Ps. No. 1 & 2 jointly, whereas Sh. Harbans Singh, Engineer, whose affidavit was tendered as Ex. R7, was also cross-examined by the learned counsel for the complainant.

 

 6.               We have heard the learned counsel for the complainant and the O.P. No. 2 and gone through the record of the file, carefully.

 

7.                At the outset, it is pertinent to mention here that the name of the O.P. No. 1 i.e. New Saini Automobiles, was deleted vide order dated 18.11.2011 passed by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, during pendency of the appeal, as is found mentioned, interalia, in para No.6 of the order dated 12.2.2015 passed in FA No. 509 of 2011. Further as per the said order dated 12.02.2015, the order dated 4.02.2011 passed by this Forum in CC No. 24 of 2010 was set aside by the Hon’ble State Consumer Disputes Redressal Commission, Punjab and this Forum was directed to obtain a fresh expert opinion of a qualified expert with regard to any manufacturing defect in tractor in question and then to decide the case afresh. Accordingly, the said CC No. 24 of 2010 was restored at its original number and in order to seek expert opinion, a letter was written to the Head of Mechanical/Automobile Engineering Research Wing, Punjab Engineering College, University of Technology, Chandigarh to give expert opinion after inspection of the tractor in question. However, vide letter dated 18.5.2015, the said Institute had informed this Forum that the said Institute does not have the facility to do the required testing to ascertain any manufacturing defect in the tractor in question. Therefore, vide order dated  17.06.2015, the parties were directed to furnish the names of the experts having degree/diploma in Mechanical/Automobile Engineering and having sufficient experience in the said filed. On 15.7.2015, the complainant as well as the O.P. No. 2 had furnished the names of experts. Er. Kuljeet Singh being well qualified and most experienced engineer was appointed to inspect the tractor in question to find out as to whether it suffers from any manufacturing defect or not and liberty was also given to the complainant to take Sh. Gurdial Singh, who was proposed to be appointed as an expert, alongwith him at the time of said inspection. Above said Er. Kuljeet Singh, after inspection of the tractor in question submitted his inspection report dated 4.8.2015, supported by his duly sworn affidavit, which are now being marked as ‘A’ & ‘B’ for facility of reference. However, during course of arguments, the learned counsel for the complainant relied upon the order passed by the Hon’ble National Commission in the case of “Sas Motors Ltd. versus Anant Haridas Chodhari’ 2013 (3) CPJ 520 wherein it has been held that the defects listed in complaint are corroborated by job cards placed on file, no expert advice was required to be obtained and submitted that there was no need to seek expert opinion in this case. As stated above, the expert opinion was sought as per the direction of the Hon’ble State Commission imparted in the FA No. 509 of 2011, therefore, the submission made by the learned counsel for complainant is not tenable.

 

8.                It may be stated that on 27.8.2015, the complainant had filed objections to the above said inspection report of Er. Kuljeet Singh, stating that said Er. Kuljeet Singh had inspected the tractor in question at the workshop in his & Sh. Gurdial Singh’s presence and had ignored his request to see the performance of the said tractor in the fields and prepared the report in question in favour of the O.Ps. by ignoring the mechanical report dated 22.12.2010, placed on record by the O.Ps. themselves, wherein crack has been pointed out in the metal sheet, which can only be the result of the substandard metal used in manufacturing of the said tractor. It is further stated that Sh. Gurdial Singh had inspected the tractor in the fields to check its working/performance and found various defects as detailed by him in his report annexed alongwith the said objections. It has been prayed that the report submitted by Er. Kuljeet Singh be ignored and the decision be rendered keeping in view the report submitted by Sh. Gurdial Singh and the documents already placed on record. The learned counsel for the O.P. No.2 has filed reply to the said objections stating that report furnished by Er. Kuljeet Singh is as per the actual position, performance/working of the tractor in question and the objections filed by the complainant may be dismissed.

 

                   This Forum has obtained the opinion of a well qualified expert, i.e. Er. Kuljeet Singh, in compliance of the directions given by the Hon’ble State Commission. Said Er. Kuljeet Singh has furnished his report, alongwith his affidavit, wherein he has deposed that he holds degree of B. Tech (Mechanical) Engineering. The said report has been furnished by him after conducting the inspection of the tractor in question, as per the directions given by this Forum, in the presence of the persons (including the complainant & the mechanic, namely, Sh. Gurdial Singh, accompanied by him), whose names have been duly depicted in the attendance memo furnished by him alongwith his inspection report. However, the complainant has raised objection that the said expert had checked the performance of the said tractor in the workshop only inspite of his request to check the same in the fields. It may be stated that the workshops are set up for checking/rectifying the defects in the vehicle and the said expert had admittedly checked the tractor in question in the workshop, therefore, the aforesaid objection raised by the complainant is baseless. The other objection raised by the complainant that the said expert had even ignored the mechanical report dated 22.12.2010 wherein it was observed that there were cracks and dent on the metal sheet of the tractor in question, is also not tenable because in the report furnished by Er. Kuljit Singh, it is mentioned at its Sr. No.6 under the heading—‘Sheet Metal’ that there were cracks and dents from various places, but he has opined that the same occurred due to excessive and negligent use of tractor and its improper maintenance. So far as the objection raised by the complainant that the report submitted by Er. Kuljit Singh be ignored and decision be rendered keeping in view the report submitted by Sh. Gurdial Singh is concerned, it may be stated that Er. Kuljit Singh had furnished his report as per the order of this Forum, whereas Sh. Gurdial Singh had inspected the tractor in question on the asking of the complainant, without calling upon the O.P. to come present at the time of inspection, therefore, the objection raised by the complainant is baseless & hence, rejected.

 

9.                In his report, Er. Kuljit Singh, has stated that there is no manufacturing defect in the tractor in question and has opined that the tractor requires proper servicing, maintenance, change of filters with company’s recommended filters, engine & gear oil etc. Even above said Gurdial Singh, in his report, has nowhere mentioned that the tractor in question suffers from any inherent manufacturing defect. Facing with this situation, we are of the considered opinion that the tractor in question does not suffer from any manufacturing defect, therefore, the prayer made by the complainant for replacement of the tractor or refund of its price cannot be acceded to at all. So far as the prayer made for refund of the charges, which the O.P. No.1 had charged in lieu of the free services is concerned, the complainant has not placed on record even an iota of evidence, from which it can be inferred that the said O.P. had charged any amount from him as & when he had taken his tractor to it for free service, therefore, the same can also not be accepted. It is not out of place to mention here that during course of arguments, the learned counsel for the O.P. No.2 has stated at Bar that since at the time when the instant complaint was filed in the year 2010, the tractor in question was within the warranty period, therefore, as a goodwill gesture, the O.P. No.1 is still ready to rectify the defect(s) by repairing/replacing the defective part (s) of the said tractor, free of cost, as per terms & conditions of the warranty.

 

10.              In view of the aforesaid discussion, we dismiss the complaint, the same being without any merit. However, the complainant is at liberty to get the defects occurred in the tractor in question rectified, as per the offer given by the learned counsel for the O.P. No.2, during course of arguments. Under the peculiar facts & circumstances of the case, the parties are left to bear costs of their own.

 

                   The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to the Record Room.

 

ANNOUNCED                                           (NEENA SANDHU)

Dated: 01.12.2015                                                PRESIDENT

 

 

                                                (SHAVINDER KAUR)

                                                                    MEMBER.