DISTRICT CONSUMER FORUM (Under Consumer Protection Act, 1986) MEDAK AT SANGAREDDY
Present: Sri P.V.Subrahmanyam, B.A.,B.L., PRESIDENT
Sri Mekala Narsimha Reddy, M.A.,LL.B.,
P.G.D.C.P.L. Male Member
Smt Meena Ramanathan, B.Com., Lady Member
Tuesday, the 20th day of April, 2010
CC.No. 61 of 2008
Between:
Akula Durgaiah S/o Kistaiah,
Aged about 65 years, Occ: Agriculture,
R/o Shivaipally (V), Medak (M), abd dist. ….. Complainant
And
- M/s Sai Krishna Agency, represented by its
Properitor Shivaramuly S/o not known to complainant
Authiruised Dealer of Mahindra Tractors,
Auto Nagar, Hyderabad Road, Medak.
- The Manager, Mahindra and Mahindra Financial,
Service Ltd, D. No. 3-9-129/1 1st Floor,
Beside IBP Petrol Pump, Medak.
- The Manager, Mahindra and Mahindra,
Tractor Manufacturers, customer care operations,
Akurli road, Kandival (East)
Mumbai – 400101. …..opposite parties
This case came up for final hearing before us on 25.03.2010 in the presence Sri. S.N. Chary, advocate for complainant and Sri. G.H. Reddy advocate for opposite parties No. 1 and 3, Sri. Ch. Boopathi, advocate for opposite party no. 2, upon hearing arguments, on perusing the record and having stood over for consideration till this day, this forum delivered the following
O R D E R
(Per. Smt. Meena Ramanathan, Lady Member)
This complaint is filed Under Section 12 of The Consumer Protection Act, 1986 claiming Rs.2,00,000/- towards damages.
The averments in the complaint in brief are as follows:-
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1. The complainant, being an agriculturist, purchased a tractor bearing NO. NARW/11634, chasis No. NAR11634 manufactured by opposite party No. 3 in the year 2007 and the said tractor was delivered to the complainant by opposite parties No. 1 and 2 through the showroom of opposite party No. 1 on 21.06.2007. As per agreement between the complainant and opposite party No. 1 the complainant paid Rs. 1,45,000/- on the date of delivery and opposite party No. 2 agreed to pay the balance of Rs.3,30,000/- by entering into hire purchase agreement. After taking delivery of the tractor, as per the directions in the booklet issued by the opposite party No.3, the complainant engaged an experienced driver and followed the instructions in the booklet. After the tractor was used for 50 hours it has started giving trouble. Immediately the complainant approached opposite party No. 1 along with the tractor and minor repairs were effected and assured that the tractor would function properly. But after use of the tractor for 250 hours again it started giving the previous trouble. On the request of the complainant mechanic of opposite party No. 3 visited the showroom of opposite party No. 1 on 14.08.2008 and inspected the tractor and opined that there was manufacturing defect at clutch plates and assays are failed and not setting to the tractor leading to damage to the fly wheel and soft bearings are cutting. The mechanic advised opposite party No. 1 to return the tractor to the company i.e. opposite party No. 3 by taking photographs. Thereafter the complainant visited the showroom of opposite party No. 1 many times but opposite party No. 1 has not taken any steps to rectify the defect which was brought to the notice of opposite party No. 2 but in vain, which is nothing but deficiency in service of opposite parties No. 1 and 3. Opposite party No. 1 has not sent the tractor for repairs nor complained to opposite party No. 3, due to which the complainant kept the tractor idle and sustained monitory loss. The complainant is aged about 65 years and he is facing cardiac problem and he suffered mental agony. With the hope that the tractor would function properly the complainant has purchased the following articles by incurring unnecessary expenditure and inspite of it the tractor is not functioning and is being kept idle.
1. Baba clutch plates works shop items rate Rs. 2,330/-
2. Sai Krishna agencies items rates Rs. 2,400/-
3. Sri Dhanalaxmi Automobiles items Rs. 2,650/-
4. Sri Padmaja Auto Mobiles items Rs. 5,540/-
5. -do- Rs. 130/-
6. Sai Krishna Agencies items Rs. 2,349/-
7. -do- Rs. 1,375/-
8. -do- Rs. 289/-
9. -do- Rs. 1,410/-
10. -do- Rs. 128/-
11. -do- Rs. 25/-
12. -do- Rs. 1,010/-
13. -do- Rs. 280/-
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As against Rs.84,000/- the complainant paid six monthly installments i.e. Rs.7,800/- and opposite party No. 2 without any receipts made an endorsement “received an amount of Rs.87,000 and additionally collected a sum of Rs. 3,000/- stating that it is towards fine”. The complainant got a legal notice issued to the opposite parties but they have not given any reply. As the complainant sustained heavy loss due to deficiency in service of opposite party No. 1 and suffered mental tension he claims Rs.2,00,000/- as damages. Hence the complaint.
The claim is resisted by opposite parties by filing counters.
2. The counters of opposite parties No. 1 and 3 are almost similar and the averments therein in brief are as follows:
It is true that the complainant purchased a tractor on 21.06.2007. Opposite party No. 1 is dealer under opposite party No. 3. The complainant categorically stated that he purchased the tractor for agriculture but he obtained policy bearing No. 37282272 valid from 17.07.2007 to 16.07.2008 issued by IFCO TOKYO General Insurance Company Limited for commercial purpose, as such the complainant suppressed material facts about the use of the tractor and hence the complaint is liable to be dismissed. The relationship between the dealer and opposite party No. 3 is on principal and principal basis. Dealer buys the tractors from manufacturer and sells to its customers. It is true that the complainant paid Rs.1,45,000/- at the time of taking delivery of the tractor and balance amount was paid by the financier i.e. opposite party No. 2 to opposite party No. 1. It is a fact that at the time of delivery of the tractor opposite party No.1 issued a booklet / operator’s manual for DI Tractors wherein opposite party No. 3 incorporated the terms & conditions and according to the conditions the tractor has to be driven by authorized driver. The operator’s manual at para 3 of page No. 5 categorically mentioned that the gaskets, drain belts, fuses, seat cushions, clutch lining/ break lining and some other parts do not cover under the warranty period. It is incorrect to say that the complainant operated only for 50 hours thereafter the tractor get into trouble and immediately complaint approached opposite party No.1 by parking the tractor in the show room. It is also incorrect to say that opposite party No.1 made minor repairs and assured that the tractor would function properly but again after operation for 250 hours the tractor has given previous trouble. In fact on 31.07.2007 the complainant brought the tractor for first servicing, as per the first labour free service after 250 hours. By that time the tractor already run 260 hours. In the said service opposite party No.1 found out that there was clutch plate problem, so the said clutch plate was replaced including first servicing. It is incorrect to say that on 14.08.2008 the mechanic of opposite party No. 3 visited the show room and inspected the tractor and advised that there is defect in manufacturing of the tractor and it is absolutely incorrect that he opined that the main defect is at clutch plates assys are failed and not setting
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to tractor leading to damage to the fly wheel shaft bearing are cutting. It is also incorrect to say that the said mechanic advised opposite party No.1 to return the tractor to the company i.e. opposite party No. 3 by taking photographs. It is also incorrect to say that the complainant visited the show room many times and opposite party No.1 did not take any steps to rectify the defect. Opposite party No.1 is not aware that the said fact was brought to the notice of opposite party No. 2 but it is incorrect to say that opposite party No.1 No. 2 followed opposite party No.1 It is incorrect to say that there is deficiency of service on the part of opposite party No.1. It is also incorrect to say that the complainant kept the tractor idle and sustained monitory loss and suffered mental agony and he is suffering from cardiac problem.
It is also in correct to say that the complainant has purchased the articles shown in the para 3 of the complaint. Sl.NO. 1 in Baba clutch plate work shop bill is dated 308.2008 wherein the clutch plates showing 1350 and other articles are also mentioned, but the said bill does not disclose the CST No. or VAT No. and also does not contain the signature of the owner of the shop as such the said bill can not be believed. Similarly bill No. 4 is issued by Sri Padmaja Automobiles for a sum of Rs.5,540/- dated 07.01.2008 where in also it is mentioned for the clutch plates which is collected Rs.5,400/- the said bill is also not showing any VAT No. or CST No. or TIN No. and signature of the owner of the shop. In fact on 14.07.2008 opposite party No.1 fixed the new driven plate i.e., clutch plate. It is clearly evident from the bill No. 2 which is filed by the complainant. Bill NO. 4 showing that on 07.01.2008 itself new clutch plates were fixed and again on 14.01.2008 fixing of new clutch plates by opposite party No.1 does not arise. The said admission of the complaint itself shows that the complainant did not come to the court with clean hands and filed the complaint with fabricated documents. The complainant filed another bill i.e. Bill No. 3 which was issued by Dhanalaxmi Automobiles for a sun of Rs.2,650/- where in also not mentioned the VAT No. of CST No. or date of purchase or signature of the owner of the shop. The bill No. 5 also does not disclose the CST No. VAST No. and signature of the owner of the shop. It is a fact that on 30.06.2008 the tractor was freely serviced third time by opposite party No.1 and at that time bill No, 6 was issued wherein the oil charges and consumable charges were charged and the same was paid by the complainant. At that time also there was no complaint by the complainant. The remaining bill Nos. 7 to 13 are categorically showing that all the bills pertaining to routine servicing maintenance. It is pertinent to note that the bill Nos. 7 to 13 are not disclosing that the tractor was repaired for the clutch plates assembled.
The legal notice issued by the complainant was mis-placed in the office therefore reply could not be sent. Opposite party No. 1 under gone open heart surgery and has taken rest as advised by the doctors therefore he could not properly attend to reply the notice. However the legal
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notice was issued on presumption and assumptions. Functioning of clutch plates depends upon ability and experience of the driver. At page No. 26 of the manual it is clearly mentioned how to take care of clutch plates. If care is not taken there is every possibility to replace the clutch plates, that is why opposite party No. 3 did not give any warranty for clutch plates. It is absolutely incorrect that the tractor was kept idle. Even till today it is working which is evident from the meter reading of the tractor. The complaint is silent as to how many hours the tractor was put to use by the time of complaint. There is no deficiency in service nor there is negligence, hence the complaint may be dismissed.
3. The counter of opposite party No. 2 in brief is as follows:
The complainant availed loan amount of Rs.3,37,000/-for purchase of 575DI tractor bearing engine number NARW/11634 chasis NO. NAR11634 and agreed to re pay the said amount with interest in 6 equal half-yearly installments at Rs.83,970/- totaling Rs.5,03,820/- and the first installment commenced from 30.12.2007 and the last installment falls due on 30.06.2010 and accordingly executed loan agreement with opposite party No. 2 company on 30.12.2007. The complainant confirms that he had taken delivery of the tractor in good condition and was satisfied with the condition of the vehicle. The tractor was covered by an insurance policy. The respondents states that he is not in any way concerned with the allegations submitted about the defect after running the tractor for 50 hours. This respondent is only a financier. As per the contractual obligations the complainant has paid installments against receipts. The allegations that excess amount was collected and no proper receipts were given are totally false and baseless. Even though there is no specific allegation against opposite party No. 2 in the legal notice, a suitable reply was issued. As per clauses 26 and 27of the loan agreement if any dispute arises between the complainant and opposite party No. 2 the matter has to be referred to arbitrator at Mumbai, as such this forum has no jurisdiction to entertain the complaint against opposite party No. 2. As the complaint is not maintainable against opposite party No. 2 the same may be dismissed with costs.
4. In order to substantiate the contentions raised in the pleadings the complainant has filed his evidence affidavit and opposite parties No. 1 and 2 have filed their evidence affidavits. Ex. A1 to A7 are marked on behalf of the complainant and Ex. B1&B2 are marked on behalf of the opposite part No.2. No documents are marked on behalf of opposite party Nos.1&3. A memo is filed on behalf of the opposite party No. 3 that he adopts the evidence affidavit filed on behalf of opposite party No. 1. Written arguments of complainant and opposite parties No. 1 and 3 filed. No written arguments are filed on behalf of opposite party No.2. Oral arguments heard. Perused the record.
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Point for consideration is whether the vehicle is in the warranty period and the complainant has proved any manufacturing defect in the tractor and deficiency in service and negligence on the part of the opposite parties and whether he is entitled to Rs.2,00,000/- towards damages ?
5. A tractor bearing number NARW/11634 chassis No.NARW 11634 made by Opposite party No.3 (manufacturing company), was purchased through Sai Krishna Agency OP.No.1 by Akula Durgaiah (complainant) native of Shivaipally. He entered an agreement with Opposite party No.1 and paid cash of Rs.1,45,000/- and agreed to pay remaining amount of Rs.3,30,000/- on date of delivery.
6. Ex.A.4 shows that entire amount of Rs.4,50,000/- was paid on 11.7.2007, but it was registered only on 5.2.2008 i.e. Ex.A.5. The Opposite party No.1 is aware of this discrepancy. Delivery was done without registration and the time laps was extensive. After operation 50 hours the complainant found the tractor giving him trouble. He approached Opposite party No.1 for repairs. Again after 250 hours of operation the same troubles were repeated. He took it back to show room i.e. Opposite party No.1 was visited by the mechanic from Opposite party No.3. The defect was adjudged to be the clutch plates assays. There was delay in repairing services from Opposite party No.3 due to which the complainant kept the tractor idle and suffered major loss.
7. There is no default in paying Opposite party No.2 (Mahindra & Mahindra Financiers) who financed the loan. Moreover they collected an additional amount of Rs.3,000/- from the complainant stating that it is a fine amount. Loan amount is Rs.3,30,000/- paid by Opposite party No.2. Complainant has repaid Rs.87,000/- so far, but no receipts were received by him.
8. As per the counter of opposite party No.1 to 3 the contention is that the driver of the tractor did not drive properly, the clutch plates other wise would have given service for a longer period. The driver was not experienced therefore the clutch plates did not give service for a long time. There is no warranty for clutch plates. It is in correct that the tractor was kept idle.
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9) We have gone through the affidavits and arguments of the both sides and concluded that Opposite party No.1 and Opposite party No.3 are at default in providing services to the complainant. It is within the warranty period that the tractor gave so much trouble repeatedly. Opposite party No.1 and Opposite party No.3 did not repair the tractor properly the first time, hence it reoccurred. The delivery of the vehicle was on 11.7.2007 (Ex.A.4) but registration of the vehicle was done on 5.2.2008 (Ex.A5). It shows that the tractor giving trouble before registration itself. The installment receipts from Mahindra & Mahindra (Ex.A.1 and Ex.A.2) shows that there is no default in payment to Opposite party No.2. The repairs bills as per Ex.A.7 amounts to Rs.24,261/-.
10) Ex.A.1 to A.7 shows evidence of gross negligence upon Opposite party No.1 to 3, due to which the tractor could not be used and was idle. The complainant had invested heavily and also borrowed from Opposite party No.2 due to which he must have suffered grave monitory loss. There is no evidence to show that the clutch plates assays don’t come within warranty. Whether he registered for commercial or agricultural purpose is irrelevant, because either way he is a consumer within the definition of 21 G and 21 D of CPA (Beneficiary is also a consumer as per the Law).
11. As such, the above facts show that opposite party No.1 & 3 have done gross negligence within the warranty period and caused loss and damages to the complainant. Moreover delivery was done without prior registration. Hence the complaint is liable to be allowed with costs, relying upon the apex court Judgment March II 2006 (CPJ 3 (SC).
12. In the result the complaint is allowed, directing the Opposite party No.1 and 3 to repair the tractor immediately and pay Rs.20,031/- and compensation of Rs.50,000/- towards damages and Rs.1,000/- towards litigation expenses. The order shall be complied within one month from the date of receipt of the order.
Typed to dictation, corrected and pronounced by us in the open forum this 20th day of April, 2010.
*** Sd/- Sd/-
PRESIDENT MALE MEMBER LADY MEMBER
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APPENDIX OF EVIDENCE
Witnesses examined
For the complainant : For the opposite parties:
-Nil- -Nil-
DOCUMENTS MARKED
For the complainant : For the opposite parties:
Ex.A1/dt.10.05.2008 – Cash receipt. Ex.B1/dt.30.6.2007 – Copy of
Loan agreement.
Ex.A2/dt.12.05.2008 – Cash receipt Ex.B2/dt.11.7.2007 – copy of
Ex.A.4
Ex.A3/dt.16.10.2008 – Two courier receipts
Ex.A4/dt.11.07.2007 – Delivery Challan-cum-
Invoice No.182/SKA/TRA/07-08.
Ex.A5/dt.05.2.2008 – Certificate of registration
Ex.A6/dt.27.07.2007 – Insurance certificate
Ex.A7/dt.12.06.2008 – Tax invoice (15 receipts)
Sd/-
LADY MEMBER
Copy to:-
1) The Complainant Copy delivered to the Complainant/
2) The Opposite parties Opp.Parties On __________
3) spare copy Dis.No. /2010, dt. .04.2010.
