Haryana

Yamunanagar

CC/845/2010

Babu Ram S/o Prem Singh - Complainant(s)

Versus

M/s Yamuna Automobiles - Opp.Party(s)

Satish Sangwan

24 Aug 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                       Complaint No. 845 of 2010.

                                                                                       Date of institution: 09.09.2010

                                                                                       Date of decision: 24.08.2016.

Babu Ram aged about 38 years son of Shri Prem Singh, resident of Village and Post Office Gudha, Tehsil Ladwa, District Kurukshetra.                                                                                                                                                                                                                                                                                                   …Complainant.

                                    Versus

 

1. M/s Yamuna Automobiles, Buria Chowk, Jagadhri dealer of Johndeer Equipment Private ltd. through its Proprietor.  
2. M/s John Deer Equipment Private Ltd. Opp Pune Nagar Road, Sanaswadi, Pune 412208, through Managing Director.                                                                                                                                                                                                                                                                                                                                    …Respondents.

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:  Sh. Satish Sangwan, Advocate, counsel for complainant.     

               Respondent No.1 already ex-parte.

               Sh. G.L.Sharma, Advocate, counsel for respondent No.2.                 

             

ORDER

 

1.                     Complainant has filed the present complaint under section 12 of the Consumer Protection Act. 1986. 

2.                     Brief facts of the complaint, as alleged by the complainant, are that complainant purchased one John Deere Tractor Model 5204, 50 HP from the respondent No.1 (hereinafter referred as OP No.1) who is authorized dealer of Op No.2 for a sum of Rs. 4,30,000/- on cash payment vide bill No. 435 dated 17.09.2007. The tractor in question was carrying the warranty for a period of 2 years. The complainant took his tractor for first free service on 24.10.2007 and found that the engine oil was less in quantity and this fact was told by the complainant to the staff of the OP No.1. Again on 25.04.2008 complainant got second free service of the tractor in question and again he found that there was only 2 litres of engine oil against the capacity of 8.5 litre. This deficiency in engine oil took place during the running of tractor for 215 hours only. The complainant took up the matter with Op No.1 but no satisfactory reply was given. Upon this, complainant lodged his complaint through letter with OP No.2, upon which complainant was asked to bring his tractor to the service engineer of the company who told to the complainant after checking the problem of the tractor that now problem has been cured and complainant would not face any problem in future. But at the time of third free service which was done at the village of complainant again the engine oil was found less. Again at the time of fourth free service on 18.10.2008 the same problem was existing. Lastly, in the month of October, 2009 complainant again approached the Op No.1with the same problem but the Op No.1 flatly refused to do anything and told that warranty period has already been expired. In this way, the OPs are guilty of deficient and negligent service to the complainant and complainant has suffered a lot of mental agony and economic loss as the OPs were duty bound to rectify the defect as mentioned above or to replace the tractor against new one and also to pay compensation as well as cost of proceedings. Hence this complaint.

3.                     To prove his case counsel for the complainant tendered into evidence short affidavit of complainant as Annexure CX and photo copies of documents such as copy of bill bearing No. 435 dated 17.09.2007 as Annexure C-1, Copy of first free service coupon dated 24.10.2007 as Annexure C-2, Second free service Coupon dated 24.04.2008 as Annexure C-3, Third free service Coupon dated 14.06.2008 as Annexure C-4, Fourth free service coupon dated 18.10.2008 as Annexure C-5, Letter/complaint made to the OPs as Annexure C-6, Copy of reply of the letter dated 09.05.2008 of Op No.2 as Annexure C-7, Postal receipts as Annexure C-8, Warranty literature as Annexure C-9 and closed the evidence on behalf of complainant.

4.                     Upon notice Op No.1 failed to appear despite service, hence he was proceeded ex-parte vide order dated 02.11.2010. However, OP No.2 appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; the relationship between the OP No.1 and 2 is on principal to principal basis, so, Op No.2 cannot he held liable for any independent act and omission, if any, on the part of Op No.1. The tractor sold to the complainant was of highest quality and the complainant has taken the delivery of the tractor, after pre- delivery inspection and entire satisfaction provided for it by the manufacturer regarding the quality and performance of the tractor; the complaint makes out no ground for relief under the provisions of section 14 of the Consumer Protection Act, as it was must for the complainant to show that the relieves as contemplated under section 14 can be given for the defect in goods supplied or deficiency in service provided to the complainant, the prayer of the complainant was beyond limited warranty terms which was provided by Op No.2. The complainant had failed and neglected to follow the guidelines given in the operator’s service book; complainant has made mis-conceive and baseless allegations of defect i.e. excess consumption of oil in tractor without relying upon any expert report from a recognized laboratory and deficiency in service without any documentary evidence in support of the allegation made in the complaint; the said tractor has been excessively used/ mis-used by the complainant for commercial activities and as such complainant cannot claim status of a consumer under the C.P.Act. 1986 and on merit it has been specifically denied that there was excess engine oil consumption and the tractor in question was suffering from any manufacturing defect. The first service of the tractor was properly attended. Lastly, prayed for dismissal of complaint.

5.                     In support of their version, counsel for the Op No.2 tendered into evidence affidavit of Surekha Arukar as Annexure RW/A and documents such as photo copy of job card dated 05.10.2015 as Annexure R2/1 and closed the evidence on behalf of Op No.2.

6.                     We have heard the counsels for both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OP No.2 reiterated the averments made in the reply and prayed for dismissal of complaint.

7.                     It is not disputed that complainant purchased the tractor John Deere Model 5204, 50 HP for a sum of Rs. 4,30,000/- vide bill No. 435 dated 17.09.2007 (Annexure C-1) from the OP No.1 manufactured by OP No.2. The only grievances of the complainant is that tractor in question was consuming excess engine oil , so, the tractor in question was having manufacturing defect and due to that complainant has suffered mental agony, harassment and economic loss and draw our attention towards free service coupon Annexure C-2 to C-5 and letter sent to OPs Annexure C-6 and reply of that letter issued by Op No.2 to the complainant dated 09.05.2008 Annexure C-7 and argued that OPs be directed to replace the tractor in question with new one.

8.                     On the other hand, learned counsel for the OP No.2 hotly argued at length that a baseless and frivolous complaint has been filed by the complainant just to harass and humiliate the Ops whereas no truth is attached with the allegations mentioned in the complaint. Learned counsel for Op No.2 draw our attentions towards affidavit of Surekha Arukar Annexure RW/A wherein it has been recorded under para No.9 and Sub Para No. ‘a to e’ that tractor in question of the complainant was put on trial for oil consumption vide job card bearing No. 5700 dated 03.09.2008, vide job card No. 5793 dated 07.10.2008, vide job card No. 5819 dated 18.10.2008, vide job card No. 6091 dated 12.03.2009, vide job card No. 6405 dated 26.06.2009, lastly vide job card No. 6409 dated  30.06.2009 it was found that oil consumption was normal. These job cards have been duly signed by the complainant and lastly argued that in the absence of any expert report from any authorized laboratory, it cannot be said that the tractor in question was having any manufacturing defect and referred the section 13(1)( C) of the Consumer Protection Act, 1986 which is reproduced here as under:

“ Where the complaint alleges a defect in goods, which cannot be determined without proper analysis or test of the goods, the District Forum shall after obtaining a sample of the goods, send it to appropriate laboratory with a direction that such laboratory make an analysis or test, with a view to find out whether such goods suffer from any defect, alleged in the complaint or from any other defect”

 9.                    Learned counsel for the Ops referred the case law titled as Dr. K. Kumar Advisor (Engineering) Maruti Udyog Ltd. Vs. Dr. A.S. Narayana Rao and another 1(2010) CPJ page 19 National Commission. Lastly, prayed for dismissal of complaint.

10                    After hearing both the parties, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of Ops as the complainant has totally failed to prove his case by filing cogent evidence. We have perused the free service coupon Annexure C-2 to C-5 wherein no such allegations regarding consumption of excess engine oil has been mentioned. In these free service coupon only serial number of the tractor, running hours of the tractor and the date with name of complainant as Babu Ram is mentioned, except this, nothing has been shown. Even from the perusal of letter issued by the complainant Annexure C-6 and reply issued by OP No.2 Annexure C-7, it is also not proved that tractor in question was having any manufacturing defect.

11.                   As per section 13(1)( C) of the Consumer Protection Act, it was the duty of the complainant to prove his version by filing expert report but neither such any report has been placed on file nor any step has been taken by the complainant to get the tractor tested from any institution and in the absence of any cogent evidence by way of expert opinion/report this Forum is unable to hold that tractor in question was having any manufacturing defect or due to that complainant has suffered any financial loss as well as mental agony and harassment.

 12.                  In the circumstances noted above, we are of the considered view that complainant has totally failed to prove his case that the tractor in question was having any manufacturing defect. As such, there is no deficiency in service on the part of OPs.

13.                   Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. 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 in open court. 24.08.2016.

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

 

                                                                                     

                                                                                    (S.C.SHARMA )

                                                                                    MEMBER