DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 31st day of March 2012
Present: Smt.Seena.H, President
: Smt.Preetha.G.Nair, Member
: Smt.Bhanumathi.A.K, Member Date of Filing :14/02/2008
CC No.31/2008
K.V.Jayarajan,
S/o.Velayudhan,
Kizhakkekkara House,
Kumaranallur,
Palakkad.
Rep by his brother Sujayan - Complainant
(By Adv.John John)
Vs
1. M/s.Malabar Motors,
VI/194, Vishal Complex,
Marutharoad, Palakkad 678001.
(Adv.U.Suresh & Dhananjayan)
2. M/s.Escorts Ltd.
Customer Service Division,
(Agri Machinery Marketing Division),
Plot No.115, Sector – 24,
Faridabad – 121005. - Opposite parties
(Adv.U.Suresh & Dhananjayan)
O R D E R
By Smt.Seena.H, President
The case of the complainant in brief is as follows:
The complainant purchased a powertrac 445 tractor with compressor manufactured by the second opposite party from 1st opposite party on 16/02/2007 which was delivered to the complainant on 23/2/2007. Within a short span of three months mechanical problem started leading to the break down of the tractor on 12/05/07. The same was informed to the 1st opposite party and tractor was taken to the 1st opposite party for necessary repairs. The tractor was delivered back to the complainant on 16/05/07 stating that the defect was to the gear box and necessary repairs were done and no further complaints would arise. But again on 24/08/07 the vehicle showed the same trouble in an aggravated form and same was again entrusted to the 1st opposite party. Tractor was delivered back on 27/08/07 on the pretext that all the repairs have been done. Again on 20/10/07 due to the same trouble the vehicle broke down again and the vehicle was entrusted to the 1st opposite party. Again it was delivered back on 23/10/07. On 3/12/07 the tractor again broke down. On 7/12/07 it was delivered back by the 1st opposite party after necessary repair works. 1st opposite party assured the complainant that no further complaint will arise. But on 8/12/07 the vehicle again showed the same trouble and once again it was entrusted to the 1st opposite party. Complainant states that the vehicle is now in the custody of the 1st opposite party. Complainant alleges that the repeated troubles to the vehicle is the result of the manufacturing defect. Complainant issued lawyer notice dtd.04/02/08 to the opposite parties stating all the facts and calling upon opposite parties to deliver a brand new tractor replacing the defective one and to pay a total amount of Rs.2,50,000/- compensation. Complainant received reply from the 1st opposite party only after filing of the complaint. The contentions of the opposite party in the reply notice are false. Even though the 2nd opposite party received the notice no reply was sent. Hence the complaint.
Complainant purchased the said vehicle for Rs.5,50,000/-. Complainant prays an order directing the opposite parties to supply a brand new tractor replacing the defective one and also claims compensation of Rs.2 lakhs.
Opposite parties have specifically denied all the allegations raised by the complainant. According to the opposite parties the defects if any was caused only because of the reckless and careless use of the tractor without following the instructions specifically stated in the manual. The defects in the gear box would be caused due to the wrong gear selection, use of over size implements and lifting of over load. The 1st opposite party has done everything to redress the grievance of the complainant. According to second opposite party whenever the complainant brought the tractor for routine service all these defects were fully rectified to the full and final satisfaction of the complainant. The routine defects which were brought into the notice were fully attended by the technician of the opposite parties on 12/05/07, 24/08/07 and 20/10/07. The complainant has signed the job card satisfying himself by checking the tractor. The defects in the tractor is not a manufacturing defect. According to second opposite party there is high probability that same occurred due to the mishandling and improper use of tractor. The complainant has reported complaint in the tractor on 3/12/07. It was checked by the experts of the opposite parties and delivered back in good condition. The photo copy of the job card dt.7/12/07 bears the satisfaction note of the complainant. Again the tractor was brought on 18/12/07 and all the defects were fully rectified on 23/12/07. According to second opposite party complainant was not taking delivery of the tractor which was entrusted to the second opposite party. 1st opposite party has given so many messages but the complainant did not turn up. According to 1st opposite party complainant has already sold the tractor to another party and hence he ceases to be consumer. Hence the complaint is liable to be dismissed.
Complainant and opposite parties filed affidavit. Exts.A1 to Exts.A11 marked on the side of complainant and Ext.B1 marked on the side of opposite parties.
The complaint was once allowed by the Forum. The matter was taken up in appeal by the opposite parties. Hon’ble State Commission set aside the order of the Forum and remanded back for fresh consideration. It is also directed to see that an expert report in the matter is produced and the evidence as to the alleged sale etc. is also adduced in detail.
Subsequently complainant filed an application for production of the vehicle by the opposite parties for examining by an expert. The prayer of examination by expert was allowed, but according to the opposite parties they are not in possession of the vehicle. Opposite parties examined the alleged purchaser of the vehicle as DW1.
Issues for consideration;
1. Whether the vehicle supplied by the opposite parties is a defective one?
2. If so, what is the relief and cost?
Heard both the parties and perused all the relevant documents on record.
The definite case of the complainant is that the vehicle stated showing defects within 3 months from the date of purchase itself and repeatedly it was taken to the 1st opposite party for effecting repairs. A brand new vehicle was delivered to the complainant on 23/12/07. Ext.A1 Job Card shows that the vehicle was brought to 1st opposite party with complaint on 12/5/07. The relevant portion in the job card is noted below:
The Replacement parts
1. D1000.5370 Ball Bearing 6208 NR 01
2. D1000.6650 Seal Oil 35 x 62 x 10 01
We are satisfied with the Gear box complaint and parts replaced. Repaired and Date of delivery on 16/5/07.
Again within 3 months i.e. 24/08/07 it was again brought for repairs. In Ext.A2 job card it is noted as follows:
The Replacement parts
1.D1000 5370 Ball Bearing 6208 NR 01
2.D1000 6650 Seal Oil 35 x 62 x 10 01
we are satisfied with the Gear box complaint and parts replaced. Repaired and Date of delivery on 27/08/07.
On 20/10/07 i.e. within 2 months of effecting repairs it is brought before the opposite parties. Ext.A3 job card read as follows:
The Replacement parts
1.D1000 6770 Bearing Ball 6207 NR 01
2.D1000 6650 Seal Oil 35 x 62 x 10 01
we are satisfied with the Gear box complaint and parts replaced. Repaired and Date of delivery on 23/10/07
Ext.A4 job card shows that within 2 month i.e. 7/12/07 was again brought for repairs and the following parts are replaced on warranty basis.
1.Main Shaft 01
2.Bearing 6208 NR 01
3.D1000 4970 Shaft 01
4.Bearing needles 46
5.Oil Seal G.B 01
Ext.A5 job card shows that the same month itself, the vehicle was again brought for repairs for gear box complaint. The relevant portion is noted below:
“Received the powertrac 445 Tractor with compressor and Jacky for Gearbox complaint”.
All these job cards shows that the main compliant is with respect to gear box. Opposite parties repeatedly states that there is no manufacturing defect as alleged by the complainant. At this juncture it is pertinent to note that the relevant portion of the reply notice issued by 1st opposite party to the complainant which is marked as Ext.A11.
“As regarding the averments contained in para 3, it is true that there was some manufacturing defects to the tractors and those were rectified by the manufacturer’s technicians”.
So defect to some extent is admitted by opposite party No.1. The documents on record i.e., Ext.A1 to A3 shows that the vehicle was brought for repairs for one and the same complaint. It shows that opposite parties failed to rectify the complaint of gear box.
But it is a settled position that manufacturing defect has to be proved by expert evidence. Hon’ble State Commission has also directed to see that an expert evidence is produced in this regard. Both the complainant and the opposite parties is of the stand that they are not in possession of the vehicle. According to the complainant it was handed over to opposite party on 18/12/2007 which is born out by Ext.A5. Opposite party on the other hand has contented in their version that though intimated, complainant has not taken the possession of the vehicle. Further in the affidavit of both opposite parties, it is stated that during the pendancy of the proceeding complainant has sold the vehicle to one Natesan. If the complainant has sold the vehicle as alleged by the opposite parties, complainant would have taken delivery of the vehicle from 1st opposite party, for which there is no evidence. It is pertinent to note here that every time the vehicle was delivered back after effecting repairs, opposite party No.1 has obtained a written acknowledgement which is seen Ext.A1 to A5.
DW1, the alleged purchaser was examined before the Forum. DW1 has deposed that “3/9/08\mWv {SmÎÀ hm§n¨Xv. PbcmPnsâ ho«nÂsh¨mWv agreement sign sNbvXXv. hnbpsS hne Xocpam\n¨Xpw, agreement H¸n«Xpw FÃmw Sep 3rd Xs¶bmWv.
Where as agreement produced by the opposite parties dated 27/9/08. Further deposed “hnbpsS RC Fsâ t]cn transfer sNbvXn«nÃ. hn transfer sNbvXv Xcmsa¶v ]dªn«v sNbvXpX¶nÃ.”
Admittedly RC has not been transferred and hence it cannot be said that the alleged purchaser is the real owner of the vehicle. The vehicle is under hypothecation and the full amount is not paid as per the version of DW1. After full payment only complainant will become the real owner of the vehicle with a right to dispose of the vehicle. DW1 has deposed that the vehicle is now in his possession. Even then the complainant has not taken any steps to examine the vehicle by an expert. Opposite parties has also not taken any steps to prove their stand that there is no manufacturing defect. DW1, the alleged purchaser has not deposed anything with regard to the working condition of the vehicle. It is settled position of law that manufacturing defect has to be proved by expert evidence. Hence we are not in a position to order replacement of the vehicle as prayed for. But the evidence on record shows that complainant has suffered a lot by taking the vehicle for repairs every time within the warranty period itself, for which we quantify an amount of RS.50,000/- as compensation.
In the result, complaint partly allowed. Opposite parties are jointly and severally directed to pay complainant an amount of Rs.50,000/- (Rupees Fifty thousand only) as compensation and Rs.2,000/- (Rupees Two thousand only) as cost of the proceedings. Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 31st day of March 2012.
Sd/-
Seena.H,
President
Sd/-
Preetha.G.Nair,
Member
Sd/-
Bhanumathi.A.K,
Member
Appendix
Witnesses examined on the side of complainant
Nil
Witnesses examined on the side of opposite parties
DW1 – Natesan.A
Exhibits marked on the side of complainant
Ext.A1 – Job Card dtd.12/05/2007
Ext.A2 - Job Card dtd.24/08/2007
Ext.A3 - Job Card dtd.20/10/2007
Ext.A4 - Job Card dtd.07/12/2007
Ext.A5 - Job Card dtd.18/12/2007
Ext.A6 - Photo copy of Certificate of Registration
Ext.A7 – Copy of lawyer notice dtd 04/02/08 issued by complainant to opposite
parties
Ext.A8 – Postal receipt
Ext.A9 – Acknowledgement card
Ext.A10 - Acknowledgement card
Ext.A11 – Reply notice sent by 1st opposite party to complainant
Exhibits marked on the side of opposite parties
Ext.B1 – Photo copy of agreement
Forwarded/By Order,
Senior Superintendent
Fair copy on : 17/04/2012
Despatched on:
