Haryana

Ambala

CC/23/2013

BACHAN SINGH S/O CHAMELA RAM - Complainant(s)

Versus

M/S S.D.TRADING CORPORATION - Opp.Party(s)

MEHAR SINGH

24 Dec 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

Complaint Case No. :  23 of 2013

Date of Institution     : 23.01.2013

Date of Decision       : 24.02.2015

Bachan Singh son of Chamela Ram alias Chamela Singh R/o VPO Sounta, Tehsil & District Ambala.

                                                           ……Complainant.

Versus

1. M/s S.D. Trading Corporation, General Sales and Service, Farmtrac Tractors, Hospital Road, Ambala City through its Manager/Prop.
2. M/s Escorts Limited, Agri Machinery Marketing Division, 18/4, Mahtura Road, Faridabad (Haryana).

                                                                             ……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act

CORAM:    SH.A.K. SARDANA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.        

Present:       Sh. Mehar Singh, Adv. counsel for complainant.

Sh. Ankush Gupta, Adv. proxy counsel for Sh. U.S. Chauhan, Adv. counsel for OP No.1.

                          OP No.2 exparte.

ORDER.

                    Brief facts of the present complaint are that on persuasion  of Ops, complainant agreed to  purchase a new tractor Make Farmtrack-60 from OP No.1 in exchange of his second hand tractor and the  OP No.1 issued sale letter/invoice bearing No.4933 dated 24.01.2012 accordingly of new Tractor which was registered  vide registration No.HR01AD-8275.  It has been further alleged by the complainant that from the very beginning of its purchase, the said tractor was having manufacturing defect in its engine/oil pump/filter etc. as it was consuming much diesel than required. The defects were reported to the OP No.1 within 20 days from the delivery of the tractor as the tractor was not having proper power of ploughing & pulling whenever it was put on cultivation on the Harrown rather it was giving heavy smoke due to high consumption of diesel.  The tractor in question was also checked by Mechanic of OP N.2 but defects were not rectified. Besides it, tractor was also checked with another tractor of the same model in the fields and found defective in pulling harrow and consumption of diesel etc. On 17.04.2012, a job card No.M/JC/57 was issued and tractor was checked and some filters were changed with some other accessories and the OP No.1 charged Rs.2350/- for the repair of the said tractor which is uncalled for as the tractor was within warranty period. Thereafter, a legal notice was served upon the Ops whereby on 25.11.2012, the tractor was called by OP No.1 for check up and it was kept in the workshop for three days and a job card was prepared  on 27.11.2012 vide receipt No.4256. Some parts were checked & repaired and tractor was handed over back on 27.11.2012 but the manufacturing defect in the engine could not be rectified which amounts to providing of deficient services & committing of unfair trade practice by Ops. This act and conduct of the opposite parties made themselves liable for the damages and harassment. Hence, the present complainant seeking relief as per prayer clause has been preferred.

2.                Upon notice, Op No.2 did not bother to appear despite service through registered post and as such, he was proceeded against exparte vide order dated 21.03.2013.

                   OP No.1  appeared through counsel  and filed written statement raising preliminary objections qua concealment of true facts by the complainant as he himself was negligent for not servicing the tractor in time  and  thus he is not entitled for any relief from this Hon’ble Forum.  On merits, it has been  submitted that sale letter was issued on 24.01.2012  but the tractor in question was delivered on 25.11.2011 against proper delivery challan to the complainant and its warranty period was one year with three free services i.e. Ist service of tractor was due upto 50 hours, IInd service was due upto 300 hours and IIIrd service was due upto 600 hours but the complainant send the tractor for Ist service within limitation whereas he send the tractor  for IInd service at 429 hours and for IIIrd service at 776 hours and thus the complainant could not took the IInd & IIIrd service  of the tractor within time and  he had also removed the original company fitted Air Filter from the Tractor’s engine and installed the duplicate air filter by purchasing the same from the local market as a result of which dust started entering into the engine  causing  trouble in the working of Tractor. Thus, the complainant was himself negligent as he failed to get the tractor serviced in time.  After the IIIrd service, mechanic of the OP No.2 also inspected the tractor in the presence of complainant and handed over the said tractor to the complainant as fully satisfied and the job card was also signed by the complainant in this regard.  It has been denied by the OP that the tractor was called for check up on 25.11.2012 rather the complainant himself send the tractor for IIIrd due service.  Hence, there is no deficiency in service as well as unfair trade practice on the part of Ops and prayed for dismissal of complaint with costs.  

3.                To prove his version, complainant tendered his affidavit as Annexure CW1/A & affidavit of one Rajesh Kumar Tractor Mechanic as Annexure CW2/A alongwith documents as Annexures C-1  to C-14 and closed his evidence whereas on the other side,  counsel for OP No.1 tendered affidavit of Sh.Sanjeev Swami, Prop. of Op No.1 firm as Annexure R-X alongwith documents as Annexures  R-1 to R-18 and closed the evidence on behalf of OP No.1.

4.                We have heard learned counsel for the parties and gone through the record very carefully. The main grouse of the complainant is that the tractor in question purchased by him from Ops remained defective time & again and despite repeated visits & requests to the Ops, the defects in the tractor neither repaired/rectified nor tractor was replaced by them. As such, the complainant has prayed that the Ops are deficient in providing proper services to him besides committing unfair trade practice. Further to strengthen his case counsel for complainant also submitted a case law delivered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi  titled as M/s SAS Motors Ltd. Vs. Anant Haridas Choudhari reported in 2013(4) CLT Page 96 (NC) wherein it has been held that “Expert opinion-manufacturing defects-Tractor purchased-Plea of OP that no expert opinion had been taken with regard to the manufacturing defects- when there were so many defects which started occurring within 12 days of purchase of the tractor-The job cards confirmed that the same defects had to be rectified to by Op-The facts speaks for themselves-In the circumstances, no expert advice is required to be obtained by complainant.”

                   On the other hand, counsel for OP No.1 argued that the vehicle is not having any manufacturing defect and as & when complainant brought the tractor for its service or for removing any defect, it was treated with utmost care and repaired/serviced to the satisfaction of the complainant. However, he remained negligent in getting the IInd & IIIrd free service of tractor in time as per schedule and thus he is not entitled for relief as per terms & conditions of warranty.

5.                During the course of arguments and appreciating  the version of both the parties, the Forum came to the conclusion that for proper adjudication  of the controversy, the report from technical person qua manufacturing defect in the engine of tractor in question as well as high consumption  of diesel by the said tractor is very essential and as such,  General Manager, Haryana Roadways, Ambala was directed to depute Works Manager, Ambala depot or Technical person in the concerned trade of Automobile Engineering posted in the workshop  of Haryana Roadways, Ambala as Local Commissioner to inspect the tractor in question in the presence of both the parties and submit report accordingly  before the Forum vide order dated 10.11.2015. Hence,  Local Commissioner, Sh. Anil Saini, SSI Haryana Roadways Ambala so appointed by General Manager, Haryana Roadways Ambala  in compliance of Forum’s order submitted report on 02.12.2015 before the Forum which was taken on record as Annexsure RX wherein it has been reported by the Local Commissioner as under:-

“The said tractor was put to ploughing in the field with Harrow for inspection  and found that the tractor could not plough at all and did not pull further in the field and the engine did not have pulling power at all. Then I called another tractor No HR60A-2594 Model Dec-2006  of same company and this older model tractor was put in the field, that tractor did not have any problem in the field while ploughing. This observation is checked by taking a private driver namely  Sh. Ravinder Singh S/o Sh. Kirpal Singh of village Rupa Majra and Sh. Hardeep Singh ETM of SD Trading Co. in the presence of both parties and Sarpanch/Numberdar Sh. Baljit Singh of village Rupa Majra. 

          So, I found that the engine of the said tractor is defective which is showing back pressure and can not work in the filed in present condition and it was also found when I put five liter of diesel in the measuring jar for checking the fuel consumption of the tractor, it took near about of 700 ml of diesel was consumed within two minute of ploughing the field in some distance. So, there was high consumption of diesel.  Also by examining   the job card history of the tractor provided by company, I found that the consumer was complaining about high fuel consumption of tractor since the second free service of the tractor and the company had repaired the fuel injection pump twice, but the defect is not properly rectified and the problem remains as it is.  So, in my opinion it seems a manufacturing defect in the engine.  Hence this report.”

6.                After hearing both the parties and considering the report of Local Commissioner & other records, it is admitted fact on record that the Tractor in question was purchased by the complainant from OP No.1 vide document Annexures C-2 & C-3 and the same was having warranty of one year as per warranty policy (Annexure C-1). Further from perusal of job cards/invoices Annexures C-5, C-6, C-7,C-8 & C-12  issued by the Ops regarding service of the tractor, it reveals that the complainant got the tractor serviced from the OP’s workshop and it was having defect of high consumption  i.e. consuming much fuel than required  from the very beginning.  On the other side, the Ops have relied upon documents (Annexure R-1) which is job sheet for Ist free service of the tractor in question and document (Annexure R-3) job sheet for IInd free service of the tractor in question wherein it is specifically mentioned that the tractor was having problem of high diesel consumption and further perusal of this document reveals that the tractor was brought to the OP after plying of 429 hours. But apparently this document is having overwriting in the column of hours which means that the OP has done some alternation in the said column  of hours and by overwriting made it as 429. During the course of arguments, our attention has also been drawn towards job sheet (Annexure R-5) which also mentions high consumption of diesel by the tractor alongwith some other comments on it. Further, the report of Local Commissioner (Annexure X) speaks that the inspection of the Tractor in question was made in the presence of  Sh. Shiv Kumar, Workshop Manager and Hardeep Singh ETM of OP No.1 i.e. SD Trading Company  and there is a manufacturing defect in the engine of Tractor in question and the tractor is also consuming high fuel and technical persons  of OP No.1 have not endorsed any objection on it meaning thereby that the engine of the tractor in question is having manufacturing defect in it from the very beginning. Therefore, the version of the Ops that the Tractor in question is not having any defect is not sustainable as they failed to rectify the defects of the vehicle upto the satisfaction of the complainant and also failed to file any affidavit of Service Engineer/Technical Person of the OP company regarding no any defects in the vehicle in question. Further as per warranty terms & conditions of company, the tractor in question was having warranty for one year but it became defective within three months of its purchase i.e. during the warranty period and Ops failed to rectify the defects to the satisfaction of the complainant. So, in these circumstances, we have no hesitation in holding that the OPs are deficient in providing proper services to the complainant and are bound to rectify the defects in the vehicle in question.       

                   In view of the facts discussed above, we allow the present complaint and directs the Op No.2 i.e. manufacturer of the tractor in question  to comply with the following directions within 30 days from the communication of this order:-

(i)      To replace the engine of the tractor in question of the complainant and handover to him in perfectly working condition to his entire satisfaction.

(ii)     To pay a sum of Rs.20,000/- as compensation on account of harassment, mental agony etc. to the complainant.

(iii)    Also to pay Rs.10000/- as litigation costs  including Advocate’s fee etc.   

              Further the award/directions issued above must be complied with by the Op No.2 within the stipulated period otherwise all  the awarded amounts shall fetch simple interest @ 12% per annum for the period of default and the complainant shall be entitled to invoke the provisions of Consumer Protection Act for implementation of the said order. Copies of this order be sent to the parties concerned free of costs, as per rules. File be consigned to the record room after due compliance.  

                        

ANNOUNCED:24.12.2015                                                           Sd/-

                                                                                             (A.K. SARDANA)

                            PRESIDENT       

                                                                                    

                                                                                            Sd/-  

      (PUSHPENDER KUMAR)

                                                                                        MEMBER