Date of Filing:  31.10.2014                                              Date of Final Order: 11.09.2015

The brief facts of the case as can be gathered from the record is that on 10/06/2014 the Complainant Sri Subodh Ghosh purchased one Saktiman Mahindra Gujarat Tractor, 55 HPPS, Model No.ELX with 11 Tines Cultivator, Cage wheel-1 set, Hood – 1 set from the O.P. No.1, M/s Sarkar Enterprise, authorized dealer of Mahindra  Gujarat Tractor Ltd., Cooch Behar at Rs.7,93,850/- through after taking a bank loan from Union Bank of India, Cooch Behar Branch and the O.P. No.1 issued a Cash Memo with free servicing book & Warranty Card.

The main allegation of the Complainant is that after 7 days of remaining at the time of cultivation in his field, the said tractor did not work properly and he was facing various problems.  The problems of the said tractor is given below as stated by the Complainant in his complaint.

1. The engine of the tractor is starting, the engine emits black smoke constantly.
2. Fuel consumption is too much than the normal range.
3. Oil meter of the engine does work.
4. The engine does not take sufficient load at the time of titling and the engine is remain over heat and arose the red signal of the meter.

After that, the Complainant took his tractor to the O.P. No.1 for repair and the O.P. No.1 repaired the said defect of the tractor but after few days the Complainant facing again defects of the tractor.  After several reminders the O.P. No.1 could not take any step or render any service to the Complainant for repair his tractor even the O.P. No.1 stated that it was manufacturing defect.  Therefore, they could not fully repair the said tractor.

Subsequently, the Complainant requested the O.P. No.1 & 2 by letter to replace the said tractor as stated by the O.P. No.1 there was manufacturing defect.  The O.P. No.1 & 2 received the letter of the Complainant but neither they replaced the said tractor nor replied the said letter to the Complainant.

Due to such activities of the O.Ps the Complainant suffering from mental pain , agony and unnecessary harassments.  Hence, the Complainant filed the instant case with enclosed relevant documents before this Forum for redress of the dispute and prayed for direction to the O.Ps to pay (1) Rs.7,93,850/- as refund money of the tractor (2) Rs.1,50,000/- as compensation for mental agony, pain and harassment (3) Rs.25,000/- for other expenditure and (4) Rs.30,000/- towards litigation cost, besides other relief (s) as the Forum deem fit, as per law and equity. 

The O.P. No.1, M/S Sarkar Enterprise, Cooch Behar has contested the case by filing their written version denying all material allegation of the Complainant contending inter-alia that the Complainant has no cause of action to being this case and the case is not tenable in law.  The main allegation of the O.P. No.1 is that the Complainant made false statement in his complaint.  The Complainant took delivery the tractor in good condition, pre-delivery inspection check up by the O.P. No.1 and with Complainant’s mechanic on 10/06/2014.  After date of delivery 1^st servicing was done by the O.P. No.1 on 08/07/2014, when tractor was already run 93 Hrs.  In this connection, the Complainant given satisfaction view and his signature on 08/07/2014.  The O.P. No.1 stated in his written version that the Complainant did not submit any document relating to technical problem of the tractor.

On the other hand, after receiving a letter dated 23/07/2014 from the Complainant for tractor difficulties, this O.P. No.1 as response of this letter had taken initiative step for repair the said tractor in 2^nd servicing on 01/11/2014 and this servicing was done in the Complainant’s house.  In this time the said tractor was run 240 Hrs. and satisfaction view given by the Complainant.  The O.P. No.1 further stated in his written version that as per company norms five free labour service will be given to the Complainant but he did not come to the dealer’s workshop for proper servicing after 2^nd servicing gone up, i.e. there is remaining more three free servicing.  Therefore, the statement made by the Complainant is totally false and there was no deficiency in service and harassment on the part of the O.P. No.1.

Ultimately, the O.P. No.1, M/S Sarkar Enterprise, Cooch Behar prayed for dismissal of the case without any costs.

The O.P. No.2, the A.G.M, Mahindra Gujarat Tractor Ltd., Kolkata has contested the case by filing their written version denying all material allegation of the Complainant contending inter-alia that the Complainant has no cause of action to being this case and the case is not tenable in law.  The main allegation of the O.P. No.2 is that the Complainant purchased one Shaktiman tractor on 10/09/2014 from the O.P. No.1, M/S Sarkar Enterprise, Cooch Behar and after few days, he was facing various problems of the tractor during titling as stated by him.  Since 10^th June, 2014 the Complainant had not made any written or oral complaint about the tractor to this O.P. No.2 except the lawyer notice dated 16/10/2014.  The O.P. No.2 had given reply dated 11/11/2014 to the Complainant and the O.P. No.1 that the Complainant to bring the tractor to the workshop of the O.P. No.1 for its necessary check up and service and informed the O.P. No.1 to take necessary steps at its end.  The O.P. No.2 received another photocopy of letter dated 13/11/2014 written by the O.P. No.1 to the Union Bank of India, Cooch Behar Branch, whereby it informed that the Complainant to bring the tractor to its workshop but the Complainant was not ready to bring the tractor to its workshop.

It has been alleged by the O.P. No.2 that this O.P. No.2 has not received any reminders, whether written or oral from the Complainant about the tractor except the lawyer notice dated 16/10/2014.

It is pertinent to mention that the terms of Warranty for Shaktiman brand of tractors manufactured by the O.P. No.2, which is generally to be handed over to the customer by a dealer along with tractor.  The Warranty Policy for Shaktiman tractors, which is stated on Operators Manual is as under –

We warrant each Shaktiman tractor and parts thereof manufactured by dus to be free from defects in material and workmanship, subject to the following terms and conditions:

1. The warranty shall be for one and half year or 1500 hours whichever is earlier from the date of sale/installation of the tractor to the original retail purchaser.  Warranty period is also limited to 24 months from the month of manufacturing.
2. Our obligation under this warranty shall be limited to repairing or replacing, free of charge, such parts of the tractor found to be defective if the tractor is brought to us or to our dealers within the warranty period.  This warranty is expressly in lieu of all warranties, whether by law or otherwise, expressed or implied and all other obligations or liabilities on our part and we neither assume nor authorize any other liability in connection with the sale of our tractor.
3. The warranty shall not apply if in our judgment that shall be final and binding, the tractor or any part thereof repaired or altered otherwise than in accordance with our standard repair procedure or by any person other than our authorized dealers, to effect its reliability.  This warranty shall also not apply if the tractor or any part has been subjected to misuse, negligence, improper or inadequate maintenance and servicing or accident or the service prescribed in operator’s manual are not carried out at our authorized dealer’s shop.

By putting all this, the O.P. No.2 prayed to exonerate this O.P. No.2 from any liability of the present case also for dismissal of the case without any costs.

In the light of the contention of both parties, the following points necessarily came up for consideration.

POINTS  FOR  CONSIDERATION

1. Is the Complainant Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
2. Has this Forum jurisdiction to entertain the instant complaint?
3. Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
4. Whether the Complainant is entitled to get relief/reliefs as prayed for?

DECISION WITH REASONS

We have gone through the record very carefully, perused the entire documents in the record along with evidences also heard the Argument advanced by the Agents of both the parties at length.  Considered the decision cited by the parties..

Point No.1.

Evidently the Complainant purchased the tractor in question from the O.Ps on payment of money.

It is the case of the Complainant that the Complainant is not a consumer U/S 2(i)(d)(ii) as he used the vehicle in question for commercial purpose.

But no paper is forth coming before the Forum to show that the Complainant has used the vehicle for commercial purpose.

During argument the Ld. Adv./Agent of the O.Ps drew our attention to copy of insurance certificate which reveals that by profession the Complainant is businessman.

But we think on the basis of said entry in insurance certificate it cannot be established that the Complainant used the vehicle for commercial purpose and it may be that he has any other businessman.

During hearing of argument the Ld. Adv./Agent of the O.Ps drew our attention to some rulings incorporate in a text book regarding Consumer Protection Act. But without perusing the original ruling we think to reliance can be placed upon the note mentioned in the said text book.

Now we find that the relation between the Complainant and the O.Ps is established and it can be safely said that the Complainant is consumer U/S 2(i)(d)(ii) of the C.P. Act, 1986.

Point No.2

The O.P. No.1, M/S Sarkar Enterprise has show room at Cooch Behar town and cause of the case was also arisen within jurisdiction of this Forum.

So, this Forum has territorial jurisdiction to try this case.

Total claim of this case is Rs.9,98,850/- which is far below than maximum pecuniary limit of this Forum.

So, this Forum has pecuniary jurisdiction to try this case.

Point No. 3 & 4.

The Complainant Subodh Ghosh stated in his complaint and evidence that he purchased one Saktiman Mahindra Gujarat Tractor, 55 HPPS, Model No.ELX with 11 Tines Cultivator, Cage wheel-1 set, Hood – 1 set from the O.P. No.1, M/S Sarkar Enterprise, authorized dealer of Mahindra Gujarat Tractor Ltd., Cooch Behar at Rs.7,93,850/- through after taking a bank loan from Union Bank of India, Cooch Behar Branch and the O.P. No.1 issued a Cash Memo with free servicing book & Warranty Card.

Challan dated 10/06/2014 and Invoice dated 10/06/2014 issued by the O.P. No.1, M/S Sarkar Enterprise show that the Complainant purchased “Saktiman Mohindra Gujarat Tractor” through United Bank of India at price of Rs.7,93,850/-. The Complainant has filed some insurance premium payment receipts issued by National Insurance Company Ltd. Which show that tractor in question was under coverage of insurance. The O.Ps have not denied the factum of selling said tractor to the Complainant by them.

The Complainant further alleged that after 7 days of remaining at the time of cultivation in his field, the said tractor did not work properly and he was facing various problems.

According to him following defect cropped in the said vehicle –

1. The engine of the tractor is starting, the engine emits black smoke constantly.
2. Fuel consumption is too much than the normal range.
3. Oil meter of the engine does work.
4. The engine does not take sufficient load at the time of titling and the engine is remain over heat and arose the red signal of the meter.

He further stated that After that, the Complainant took his tractor to the O.P. No.1 for repair and the O.P. No.1 repaired the said defect of the tractor but after few days the Complainant facing again defects of the tractor.  After several reminders the O.P. No.1 could not take any step or render any service to the Complainant for repair his tractor even the O.P. No.1 stated that it was manufacturing defect.  Therefore, they could not fully repair the said tractor.

We find that the Complainant in his complaint and evidence alleged that several defect like emitting black smoke, heavy fuel consumption, engine heating and other manufacturing defect cropped in the said vehicle within short period of purchase. But the Complainant has not filed any scrap of paper to show any major/manufacturing defect in the said vehicle.

Rather, it appears from 1^st labour free servicing and 2^nd labour free servicing certificate signed by the Complainant that said 1^st and 2^nd free servicing were rendered to the Complainant by the O.Ps.

O.Ps also claimed in their evidence that thorough repair of the tractor was done at the time of 2^nd service rendered at the house of the Complainant.

It appears from the copy of the certificate issued by the Complainant that after 1^st free service the Complainant by putting his signature certified that he has got satisfactory service.

During hearing of argument, Ld. Agent/Advocate of the Complainant submitted that said signature was obtained by O.Ps by misrepresentation and fraud.  But we find that said certificate was written in clear Bengali language and the Complainant put his signature in Bengali there.  The Complainant has failed to adduce any evidence regarding misrepresentation and fraud.

It is the case of the Complainant that he has sent several reminders to O.Ps and lastly by sending a letter requesting the O.Ps to replace the defective tractor.

Regarding alleged reminder, only Xerox copy of a letter without any date is forthcoming before this Forum by which O.Ps were requested to replace the said defective tractor.

But there is nothing to show that said notice was served upon by hand or by post.  So, in view of our above made discussion, it can be said that the Complainant has failed to prove that he sent several reminders for repairing/replacement of the vehicle in question to the O.Ps.

Copy of Advocate’s letter and Registration slip show that Complainant has sent an Advocate’s letter through Sri Subhashis Chakraborty to the O.P. No.2 requesting them to replace the defective tractor. Date of the said letter is over-written. Registration slip shows that said letter was sent on 16.10.2014.  No A/D Card is filed.

However, it appears that within 15 days from the date of sending said letter, the present case was filed by the Complainant.

It further appears from the Annexure-7 of the O.Ps i.e. letter dated 13.11.14 to the Manager, Union Bank of India, Cooch Behar by the O.P. No.1, M/S Sarkar Enterprise that in view of Advocate’s letter by the Complainant, they asked the Complainant, Subodh Ghosh to bring his tractor at their showroom but in vain.

Considering overall matter into consideration and materials on record, we find that it has been proved by the O.Ps that they have rendered 1^st and 2^nd free service satisfactorily to the Complainant and the Complainant did not get opportunity of 3^rd, 4^th and 5^th free service.

We further find that the Complainant has failed to prove any major manufacturing defect in tractor in question, by adducing any cogent evidence and also has failed to prove fact of sending several reminders (barring last Advocate’s letters) for repair of the tractor in question.

Ultimately, we are constrained to hold that there is no deficiency on the part of the O.Ps and the case is liable to be dismissed.

Thus, these points are decided against the Complainant.

The case fails.

ORDER

Hence, it is ordered that,

            The DF Case No.74/2014 is dismissed on contest with cost of Rs.2,000/- against the O.P. No.1, M/S Sarkar Enterprise, Cooch Behar and the O.P. No.2, the A.G.M, Mahindra Gujarat Tractor Ltd., Kolkata.

Let plain copy of this Final Order be made available and be supplied free of cost, to the concerned  party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules.

Dictated and corrected by me.

                 President                                                               President

   District Consumer Disputes                                District Consumer Disputes                       

Redressal Forum, Cooch Behar                          Redressal Forum, Cooch Behar

                  Member                                                                 Member

    District Consumer Disputes                                 District Consumer Disputes

 Redressal Forum, Cooch Behar                           Redressal Forum, Cooch Behar