Tripura

StateCommission

A/25/2016

Sri. Samir Das - Complainant(s)

Versus

M/S Progressive Motors - Opp.Party(s)

Mr. G.S Bhattacharjee, Mr. M.Debnath

26 Dec 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, TRIPURA

 

 

PRESENT

 

HON’BLE MR. JUSTICE U.B. Saha,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR. NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

 

APPEAL CASE No.A/25/2016

 

 

 

1. Sri Samir Das,

S/o Late Rajmohan Das,

Vill: Betaga, P.O. Betaga, P.S. Santirbazar,

Dist. South Tripura.

                                                  ….    ….    ….    ….    Appellant/Petitioner.

                                                           

                   Vs

 

1. M/s Progressive Motors,

L.N. Bari Road, Ganaraj Chowmuhani,

P.O. Agartala, P.S. East Agartala,

Dist. West Tripura, Agartala-799001.

 

2. Managing Partner,

M/s Progressive Motors,

L.N. Bari Road, Ganaraj Chowmuhani,

P.O. Agartala, P.S. East Agartala,

Dist. West Tripura, Agartala-799001.

 

3. Managing Director,

Tripura Horticulture Corporation Ltd.,

RCDF Complex, P.O. Arundhutinagar,

Agartala, Tripura West, Pin-799003.

 

4. Superintendent of Agriculture,

Office of the Superintendent of Agriculture,

Bagafa, P.O. Santirbazar, Tripura South, Pin-799144.

 

5. Branch Manager,

State Bank of India,

Santirbazar Branch, P.O. & P.S. Santirbazar,

Tripura South, Pin- 799144.

….    ….    ….    ….   Respondents/Opposite Parties

 

For the Appellants            :         Mr. Gauri Shankar Bhattacharjee, Adv.

For the Respondents        :         Absent

Date of Hearing                :         07.12.2016.

Date of delivery of Judgment:     26.12.2016

 

J U D G M E N T

 

 

U.B. Saha, J,

This appeal is filed by the appellant-petitioner, Sri Samir Das of Betaga, P.S. Santirbazar, South Tripura District under section 15 of the Consumer Protection Act, 1986 against the Judgment dated 03.05.2016 passed by the Ld. District Consumer Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) in Case No.CC-59/2015 whereby the Ld. District Forum allowed the application filed under section 12 of the Consumer Protection Act and directed the respondent nos.1 & 2, M/s Progressive Motors authorized dealer sale service centre to repair and replace the parts of the purchased tractor immediately and hand over the same to the appellant-petitioner and also directed the o.p.-respondent nos.1 & 2 to pay Rs.25,000/- to the appellant-petitioner as compensation for deficiency in service and unfair trade practice. Being not satisfied with the aforesaid direction of the Ld. District Forum, the appellant who was a petitioner before the Ld. District Forum filed this appeal.   

2. Heard Mr. Gauri Shankar Bhattacharjee, Ld. Counsel appearing for the appellant-petitioner. As none appears for the o.p.-respondents in view of the order dated 07.12.2016, the matter has been taken up ex-parte against the o.p.-respondents. 
3. The facts needed to be discussed are as follows:-
4. The appellant-petitioner filed an application under section 12 of the Consumer Protection Act, 1986 before the Ld. District Forum against M/s Progressive Motors, Laxmi Narayan Bari Road, Agartala, the o.p.-respondent no.1 and its Managing Partner, the respondent no.2, as well as the Managing Director, Tripura Horticulture Corporation, the Superintendent of Agriculture and the Branch Manager, State Bank of India i.e. respondent nos.3 to 5 respectively.
5. The case of the appellant-petitioner before the Ld. District Forum was that he had purchased a Mahindra Yuvraj Tractor with an amount of Rs.2,45,711/- from M/s Progressive Motors, the respondent nos.1 & 2 with the loan advanced by State Bank of India and the subsidy amount received from Horticulture and Agriculture Department. The period of warranty of the aforesaid Mahindra Yuvraj Tractor was for one year and within the warranty period of one year, the tractor was not working properly. The rotovator (device to plough the field) was not attached to the tractor. As there was defect in the tractor, the tractor could not be used for cultivation. The tractor could not be started. The appellant-petitioner made a complaint before the o.p.-respondent, Progressive Motors and requested them for replacing the same, but his request was turned down.  So, he filed the complaint petition under section 12 of the C.P. Act before the Ld. District Forum for a direction to the o.p.-respondents to pay the compensation to the tune of Rs.2,75,711 as cost of the tractor and rotovator under the loan with some other prayers.
6. The Ld. District Forum on being received of the said complaint petition issued notices upon the o.p.-respondents.
7. After receipt of the notice, the o.p.-respondent no.1, Progressive Motors though appeared, but did not file any written statement. The respondent no.3, Managing Director, Tripura Horticulture Corporation Ltd. filed a written statement denying the claim of the appellant-petitioner. In the written statement, the o.p.-respondent no.3 has stated that they are not the necessary party and as such, no relief as sought for against them can be claimed.
8. The other o.p.-respondents neither appeared nor filed any written statement.
9. The appellant-petitioner had examined two witnesses who were examined by the o.p.-respondent no.3 as other o.p.-respondents did not appear.
10. The Ld. District Forum considering the evidence of P.W.1 complainant,  the petitioner himself and P.W.2 Basudev Saha who supported the version of the complainant, i.e. appellant-petitioner and on perusal of other records held that the tractor was defective one and the said tractor was purchased by the Horticulture Department for use of the appellant-petitioner, Samir Das though the rotovator was purchased on 28.10.2013, but the request letter was sent by the Superintendent of Agriculture and Progressive Motors sold the same to the appellant-petitioner on 08.11.2013. Thus, the complainant-petitioner, the appellant herein was the consumer and in its findings the Ld. District Forum also stated that as per warranty card, labour free coupon services were provided in the booklet and the machine was not working since 25.12.2013. As per warranty, company dealers i.e. the respondent nos.1 & 2 is to repair and replace any part of the tractor found to be defective in materials or workmanship in their opinion within 12 months or 750 hours of operation whichever occurs earlier. As within the warranty period, the machine stopped its functioning and the dealer Progressive Motors neither repaired the machine nor replaced the same, the Ld. District Forum in its findings specifically stated that from the evidence on record they are of the clear opinion that the tractor was defective one and it was to be replaced and ultimately directed the o.p.-respondent nos.1 & 2, M/s Progressive Motors to repair and replace the parts of the purchased tractor immediately and handover the same to the appellant-petitioner and also directed the said o.p.-respondents to pay an amount of Rs.25,000/- to the appellant-petitioner as compensation for deficiency in service and unfair trade practice.
11. After admission of the appeal, this Commission issued notices upon the o.p.-respondents.
12. After receipt of the notices, the respondent nos.1, 2 & 3 appeared through their Ld. Counsels, but neither the respondent no.4 nor the respondent no.5 appeared for contesting the case.
13. Though the respondent nos.1, 2 & 3 has appeared through their Ld. Counsels, but on 02.12.2016 and 07.12.2016 i.e. on the date of hearing, none appeared on behalf of the o.p.-respondents and the case was proceeded ex parte against the o.p.-respondents.
14. Mr. Bhattacharjee, Ld. Counsel appearing for the appellant, complainant-petitioner urging for modification of the judgment of the Ld. District Forum contended that the Ld. District Forum ought to have directed the o.p.-respondents  to pay the compensation to the limit of Rs.2,75,711/- as cost of the tractor and rotovator under the loan, Rs. 50,000/- for deficiency in assured service and damages and Rs.50,000/- for mental agony and harassment as Ld. District Forum in its findings specifically came to a conclusion that the tractor is found with inherent defect and the same cannot be repaired and thus, it is to be replaced. He also pointed out before us that on 10.11.2013, the technician of the dealers came to the residence of the appellant-petitioner and assembled the rotovator with the tractor and showed one demonstration to the appellant-petitioner how the tractor has to be used, but even after demonstration by the technician, the tractor was not started properly and not only that, the rotovator was also not fitted in correct alignment.
15. As none appears on behalf of the o.p.-respondent nos.1 & 2 before the Ld. District Forum and also did not file their written statement, thus, the contention of the appellant-petitioner was uncontroverted before them for which, the Ld. District Forum accepted the contention of the appellant-petitioner.
16. We have gone through the evidence on record and also considered the submission of the Ld. Counsel for the appellant-petitioner. From the evidence, we have found that the appellant-petitioner has purchased a Mahindra Yuvraj Tractor with an amount of Rs.2,45,711/- from M/s Progressive Motors, the o.p.-respondent nos.1 & 2 and the said tractor was not properly functioning within the warranty period and there was major defect in the levers of the machine for which the appellant-petitioner had taken up the matter with the M/s Progressive Motors, the o.p.-respondent nos.1 & 2 as well as o.p.-respondent nos.3 & 4. It also appear from the record that the dealer of the M/s Progressive Motors had sent their technician to see the defects of the tractor and after checking the tractor, the technician directed the appellant-petitioner to purchase certain engine parts and the appellant-petitioner purchased the same and after fitting of those, the engine of the tractor started on difficulty, but when the appellant-petitioner raised question regarding the functioning of the tractor, the technician of the dealer told him that due to new engine the problem cropped up and the said problem would not be there after continuous use of the machine, but thereafter also, the machine could not function properly as the rotovator was not moving.
17. According to us, the Ld. District Forum rightly said that as per warranty, the company dealers is to repair and replace any part of the tractor found to be defective in materials or workmanship in their opinion, within 12 months or 750 hours of operation whichever occurs earlier and within the warranty period the machine stopped its functioning and the dealer M/s Progressive Motors, the o.p.-respondent no.1 are under liability to replace the defective parts or repair the tractor.
18. Now, question is as to whether any modification of decision given by the Ld. District Forum is necessary as sought for by Mr. Bhattacharjee Ld. Counsel for the appellant-petitioner.
19. Direction of the Ld. District Forum to the o.p.-respondent nos.1 & 2 is to repair and replace the parts of the tractor in question, but the Ld. District Forum did not consider if, even after replace of the parts, the tractor would not function then what will happen to the appellant-petitioner. As to how, he will be compensated so far the cost of the tractor and deficiency of the service is concerned.
20. In view of the above, we are of the opinion that it would serve the purpose if we modify the order of the District Forum to the extent directing the o.p.-respondent nos.1 & 2 M/s Progressive Motors authorized dealer sale service centre to repair and replace the parts of the purchased tractor within three months from the date of placing the defective tractor by appellant-petitioner to them and if the defect of the tractor is not cured even after repair and replace of the parts then the o.p.-respondent nos.1 & 2 M/s Progressive Motors shall replace the old tractor by providing a new tractor. Accordingly, it is ordered. We also direct the o.p.-respondent nos.1 & 2 to pay Rs.10,000/- instead of Rs.25,000/- to the petitioner as compensation for deficiency in service and unfair trade practice.
21. With above modification, the appeal is allowed. No order as to costs.

Send down the records to the Ld. District Forum, West Tripura, Agartala.  

         

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura